SOME ACCOUNT 



OF THE WOUK Ol' 



STEPHEN J. FIELD 



LEGISLATOR, STATE JUDCiE, AND JUSTICE OF THE 
SUPREME COURT OF THE UNITED STATES. 

^ ^ ' ( U WITH AN 



INTRODrCTOKY SKETCH 

BY 

J. MORI ON POX^IEROY, I.I.. D. 

1881. 

AND AN APPENDIX 

CONTAINING 

His remarks on the Life aud Character of Chief Justice Chase ; his 
address at the Centeunial Celebration of the organization of the Federal 
Judiciary, February 4, 1890 ; the memorial from Senators from California, 
Nevada, Oregon, and Idaho, and from the judges and members of the bar 
of California, and from the Federal judges in that State, requesting him 
not to change his circuit : and the story of his attempted assassination 
by a former associate on the Supreme Bench of California. 

By Hon. GEORGE C. GORHAM. 



1895. 




Copyright, 1882, by S. B. Smith. 



9 



INDEX. 



iNTRonucTORY Sketch by Prof. Pomeuoy : Pagks. 

1. Early life of Judge Field 6-i:5 

2. His work as a Legislator 13-'22 

;{. His work as a member of the California Supreme Court 22-4;". 

4. His work as a member of the U. S. Supreme Court 4o-(il 

Note by the Editors "-J 

Judge Field as a Legislator •'> 

a. Legislation for the protection of miners in their mining 

claims '^8 

h. Legislation for the exemption from forced sale of tools and 

other personal property of debtors S-ll 

v. General Legislation secured by him 11-14 

Judge Field as a member of the Supreme Court of Cali- 
fornia : 

1. His election l-'i 

2. Estimate of his judicial career on that bench by Judge 

Baldwin lf> U' 

?,. Unsettled condition of land titles in the State from three 
causes : 

a. Extent and indefinite boundaries of Mexican grants.. 20 24 
h. Occupation of the public lands by settlers in ad- 
vance of legislation by Congress 24-2."> 

c. Claim of the State to own the minerals in the soil.. 26-2!) 
4. His opinions on : 

a. Patents for lands by the United States :><> 

ft. Municipal corporations •''^' 

c. Mortgages and other subjects •»•> 

d. A Sunday law 34-:JT 

e. The non-receivability of Legal-Tender notes for 



taxes.. 



;?8 



JviHilC P'IKM) AS A MKMBIiR ()F Tin: SLJ'RICMt; COUKT OF THE 

U N IT E I ) St A T ES : Packs. 

1. His appointment 39 

2. His opinions on — 

1. The Milligan case 4il-42 

2. The Cummings case 42-45 

3. The Garland case 45-40 

4. TheMcArdle case 46-50 

5. The Confiscation eases 50-59 

6. Cases on Pardon and Amnesty 59 ()5 

7. Legal-Tender cases and Confederate notes (i5 s(j 

8. The legislative power of the Insurgent States duiing 

the civil war, and the extent to which the Confed- 
erate Governlixent could be regarded as a de facto 
government 87-96 

9. Protection from military arrest and imprisonment, 

(hiring the war, of citizens not in the military ser- 
vice of tlie United States, where the Civil Courts 
were open 90-105 

10. Protection to officers and soldiers of the United 

States army in the enemy's country daring the 

war 105 

. (1. Coleman vs. Tennessee lOC-112 

h. Dow vs. Johnson 112-119 

11. Protection of sealed matters in the mails from in- 

spection of officials of the Post Office 119-124 

12. The Fourteenth Amendment and the Slanghter- 

House cases 124-156 

13. The power of the State to control the compensation 

receivable for the use of private property and ser- 
vices in connection with it. The Chicago Ware- 
house cases 156-173 

14. The relation between the General Government and 

the State Governments : 

a. The Virginia Jury cases 173-201 

b. The Election cases from Ohio and Maryland... 201-216 

15. Corporations — cases relating to their powers and 

liabilities : 

a. Paul vs. Virginia 216-219 

h. Marsh vs. Fulton County 219-221 

e. Tomlinson vs. Jessup 220 

d. The Delaware Railroad Tax Case... 221-222 

e. Board of Commissioners of Tippecanoe County 

vs. Lucas, Treasurer 222 



/. Iiruii.ulitoii va. IViisiicula 222 22:5 

(J. U. S. vs. New Orleans 223-224 

• h. Pensacola Tel. Co. vs. Western Union Tel. Co... 225-2:« 

/. Union racific K. Co. vs. Ignited Stales 2:3:5-255 

1(). Other cases in the Supreme Conrt 25(5-258 

17. Inter-state eoninieree 259 

a. Welton vs. ]\[issouri 2(50-264 

/;. Sherlock vs. Ailing 2(54-268 

c County of .Mobile vs. Kimball 268-27:5 

18. Tiie ])Ower of taxation by the Oeneral and State 

Governments: 

State ta.NL on Ibreigu-'held bonds 27:5-283 

19. The trust character of directors of corporations : 

Warden vs. Union Pacific R. Co 283-288 

20. The use of running waters on the public lands 288 

n. Atchison vs. Peterson 289-294 

h. Basey vs. Gallagher 294-295 

Casks in the Circuit Court of thi: UNiTcn States: 

1. U. S. vs. Greathouse 296-305 

2. U.S. vs. Knovvles 305-:509 

3. U. S. vs. Smiley :509-313 

4. ^A'-partc Cavanaug'h on habeas corpus 314 

5. Hardy vs. Harbin 315 

6. Hall vs. Unger 321-:528 

7. Montgomery vs. Beavans.. , 328-335 

8. United States vs. Flint, Throckmorton, and Carpeutier... 335-349 

9. The Eureka case 350-360 

10. The municipal lands of San Francisco. The Pueblo case... 360-:}76 

11. The legislation of California, State and municipal, against 

tl»e Chinese ;57G-;584 

a. The case of Ah Fong on habeas corpus 384-:594 

h. Ah Kow vs. Nunan 398-405 

12. Other cases in the Circuit Court 409-410 

The Ei.ectoral Commission of 1877: 

1. The Florida case 415-430 

2. The Louisiana case 430-4:52 

:5. The Oregon case 432-439 

4. The South Carolina case. 439-440 

5. General disappointment of the country at the action of 

the Commission, from the Public Ledf/er of Philadel- 
phia 440-442 



APPEiMDIX. 

Opinions ol" the Supreme Court in the Test-Oath cases, de- 
livered by Judge Field : rA(;Es. 

1. In the Cummings case 445 

'2. In the Garland case 4.")? 

Remarks of Judge Field ou the life and character of Chief 

Justice Chase , 465 

Introductory address of Chief Justice Fuller at the Cen- 
tennial Celebration of the organization of the Federal 
Judiciary 475 

Address of Justice Field on the same occasion 477 

The speech of Justice Harlan made at the banquet in the 

evening 501 

Memorial from Senators from California, Oregon, Nevada, 
iind Idaho, and from the judges and members of the 
bar of California and the Federal judges in that State, 
requesting Justice Field not to change his circuit 509 

The story of his attempted assassination by a former asso- 
ciate on the Supreme Bench of California A. 

CONOLUSION B 



INTRODUCTORY SKETCH. 



I purpose to analyze and descrilje the work and it^ re- 
sults of one wlio, to an extraordinaiy degree, has Impressed 
his own conceptions upon the jurisprudence of the coun- 
try — as much so, perhaps, as any living jurist of America. 
To those who are informed as to the extent and variety 
of his official labors, this will not appear an extravagant 
opinion; and its correctness will l)e demonstrated l)y the 
facts which I shall produce. 

Tlie subject of this memoir belongs to a remarkable 
family — a family which well illustrates the effects of 
American civ'lization and institutions working upon the 
best J^ew England character. Commencing their careers 
with no advantages except the earl}- training of God- 
fearing parents, and the education afforded by the coun- 
try academy and college, the living members of the 
family, consisting of the brothers David Dudlej^ Field, 
Cyrus West Field, Stephen Johnson Field, and Henry 
Martyn Field, have all risen to distinction. Of the first 
two named brothers the reputation is world-wide; in fact, 
David Dudley Field and Cyrus W. Field are even Ijetter 
known and more honored throughout Europe than in their 
own country. If the fourth brother has attained to a less 
extensive fame, it is because as a clergyman he has confined 
his activities to an American church, within wiiich be has 



a high position and has long wielded a powerful influence 
as the editor of one of the leading religious papei's of the 
country. Of David Dudley Field and Cyrus W. Field it 
is unnecessary to speak. The former, hy his reforniing 
measures in the systems of procedure in the courts, has rev- 
okitionized the modes of administering justice, and placed 
them upon a foundation of simplicity and truth in all those 
nations and regions of the world where the English common 
law has been adopted. The latter, by his far-seeing sagacity, 
untiring energy, and deep enthusiasm, has been the leader 
in accomplishing that triumph of science and conmierce 
combined by which all parts of the world are united, time 
and space are annihilated, nations are made one, and the 
vast world-wide movements and transactions of business, 
trade, and commerce are controlled. The work of tlie 
third brother, who is tlie subject of this sketch, lias been 
restricted to the legislation and jurisprudence of his own 
country, but in some respects it is equal in importance and 
variety to that accomplished by either of his brothei-s. 

Stephen Johnson Field was born in Haddam, Connecti- 
cut, on the 4th of November, 1816. His grandfathers on 
both his paternal and maternal sides served as officers in 
the Revolutionary War, and were descended from a I'uri- 
tan stock, their ancestors being among the earliest settlers 
of New England. In 1819, when he was about three years 
old, his father, who was a Congregational clergyman, 
removed to Stockbridge, Massachusetts, and Stephen's 
childhood and early youth were there passed in what has 
l)ecome one of the most famous and classic spots of New 
England. At the age of thirteen, a step was taken by 
him which undoubtedly produced a deep and lasting im- 
pression upon his intellectual and moral character, al- 
though its effects upon his external life were temporary 
and trifling. In 1829 an -elder sister married the Rev. Jo- 
siah Brewer. Mr. and Mrs. Brewer, acting under the 
auspices of The Ladies' Greek Association in New Haven, 
80011 afterwards sailed for the Levant, with the intention 



of establishing schools in Greece lor the ciliicMllon of fr- 
niales. They invited Ste]>hen to accoin[)any them. His 
l)rother, David Dudlcv, who as (lie eldest of the family 
took a deep and active interest in promoting the wcllarc 
of the younger members, advised his going for the [lur- 
pose of stnd^'ing the Orit'iital languages, thinking that 
he coidd thereby (piality himself for a professorship of 
Oriental languages and literature in an American Uni- 
versity. With this design he accompanied his sister 
and brother-in-law. They sailed ])ecend:»er lOtii, 1829, 
and arrived at Smyrna, February 5, 1830. Mr. Brewer 
there changed his original plan and established a school at 
vSmyrna. Stephen remained in the Levant two and a half 
years. In addition to the time spent in Smyrna he visited 
many of the islands of the Grecian Archipelago, and fa- 
mous cities of Asia Minor, and passed one winter in 
Athens in the family of the Rev. John Hill, the well- 
known American missionary of the Episcopal Ghurch. 
Mr. and Mrs. Hill had been on a visit to Smyrna, and Mr. 
Hill being detained by some matters of business, Mrs. Hill 
I'eturned to Athens without him. Stephen acconipained 
her as her escort and remained at Athens until Mr. Hill's 
return. During this residence in the East, Stephen learned 
the modern Greek so that he was al)le to write and to 
speak it with ease, and acquired some knowledge of the 
Erench, Italian, and Turkish. But the most important and 
lasting result of the time thus spent in the East during 
the plastic period of his youth, was a moral one; and the 
lesson which he there learned was that of religious tol- 
eration. He had been 1)rought up as a boy in the strict- 
est tenets of Calvinism. As he says of himself, '"he had 
been taught to believe that the Xew England Puritans 
possessed about all the good there was in the religious 
world," and to look with distrust upon all the great his- 
torical churches wdiich they, with one sweeping condem- 
nation, called Nominal Christians. During his Eastern life 
he was thrown into close contact with lioman Catholics. 

B 



10 

members of the Greek Church, and Armenians, as well 
as with Mahometans ; he saw examples of faith, devotion, 
piety, and virtue among them all, and was profoundly 
impressed by them. Indeed, his views undei'went an en- 
tire revolution; and thei-e was laid the foundation of that 
broad tolerance which has ever since been a distinguish- 
ing element of his character.* 

He returned to the United States during the winter of 
1832-3; entered Wilhams College in the fall of 1833, and 
was graduated in 1837, having obtained the highest honors 
of his class — the Greek oration at the Junior Exhibition, 
and the valedictory oration at the Commencement. He 
entered upon the study of the law during the Spring of 1838, 
in the office of his brother, David Dudley, in Xew York 
City, and was admitted to the Bar in 1841. A portion of 
this interval he spent in Albany, giving instruction to 
classes of the Albany Female Academy, and pursuing his 



* Stephen was in Smyrna when the clreaded plague visited the city in the spring 
of 1831. Every one tlien avoided his neighbor as if contagion would follow the slight- 
est touch. Says a writer describing the scenes : " If two men met in the street, each 
drew away from the other, as if contact were death. Sometimes they hugged the 
walls of the liouses, with eanes in their hands ready to strike down any one who 
should approach. All papers and letters coming through the mails were 
smoked and dipped in vinegar before they were delivered, lest they might commu- 
nicate infection. Even vegetables were passed through water before they were 
taken from the hands of the seller. Terrible tales were told of scenes when guests 
were carried away dead from the table, and servants dropped down while waiting 
upon it. On every countenance was depicted an expression of terror." Mr. Brewer 
remained in the city for two or three weeks, and then left with his family in a 



In the Fall of the same year Smyrna was vi-sited with the Asiatic cholera. Hun- 
dreds died every day from its attacks, and thousands left the city and camped in the 
fields. Mr. Brewer gave his time to administering to the sick and dying. With his 
pockets filled with medicines he went through the lanes and alleys of the city on 
his errand of mercy. Stephen, with his pockets filled in the same way, accompa- 
nied him in all his rounds. Commodore J. E. DeKay, in a work entitled " Turkey 
in '31 and '32," thus speaks of the heroic devotion of :Mr. Brewer in those terrible 
scenes, as follows: 

" The efforts of the physicians at Smyrna during the fearful season of cholera, 
were nobly seconded by many of the foreign missionaries. Among these I heard 
the labors of Mr. Brewer everywhere spoken of in terms of admiration. Furnished 
with all the requisite remedies, he scoured every lane and alley, proclaiming his 
benevolent intentions, and distributing even food to the needy. Let history, when 
it repeats the story of the good Bishop of Marseilles — who, after all, was merely a 
soldier at his post — also record the benevolence and the proud contempt of danger 
and of death eyliiced by an A'TiBrioan stranger within the pestilential walls of 
Smyrna." 



11 

St in lies ill tlio olWvc olMolui \':iii IJiirciK tlu-ii llic Attonicv - 
(Jeiicral of tlic State, and at tlu' suiiimit of his l.riHiaiil 
Imt (lisap[ii'intiiii;- earee.i-. On Iieinu- admitltMl to tiu' Bar, 
lie was taken into [)artnei's|iii) \)\ his hrotlier in Xew 
York City, whieh eoiitinued tintil the yeai- 184.S. On 
the breaking out of the Mexiean war, and aii-ain at its 
close, his brothel' advised him to reiiio\c to Caliiornia, 
making generous oti'ers of pecimiarv means for iii\-est- 
ment in the purchase of land, hut Ste[theii had a strong 
desire to visit Europe, and declined the proposal, lie 
sailed for Europe in June, 1848, with the design of making 
an extensive tour. Wliile in Paris, the following winter, 
lie read the annual message of President Polk to Coiigress, 
which officially announced the discovery of gold in Cali- 
fornia. He then felt some regrets that lie had not acted 
upon tlie advice of his brother, but nevertheless concluded 
to visit the most interesting parts of Europe before return- 
ing. He did so, and returned to Xew York in the P^dl of 
1849, arriving on the 1st of October. Soon afterwards he 
left for California. 

As I do not intend to write a life t)f Judge P'ield,! shall 
not attempt to describe the incidents and adventures of 
liis Cahfornia career. It will be sufficient to mention the 
most important events, so as to exhibit the more clearly 
his public and official labors, and to fix the date of the 
successive steps which he took until he reached his present 
high position as a memlier of the Supreme Court of the 
United States. 

He arrived in San Francisco on the 28th of Decem- 
ber, 1849, with hardly any funds, and with no resources 
except untiring energy and capacity for work, great in- 
tellectual ability, natural and cultivated, the well-laid 
foundation of legal learning, and the high hopes of open- 
ing manhood. In Jannary, 1850, he removed to a settle- 
ment just commenced which became the important inland 
city of Marysville. Here he established himself, and the 
place continued to be his home during the whole of his 



12 

professional life in California, until 1857. He was at once 
elected the first alcalde of the new town, and held the 
office until the organization of the State government, and 
the introduction of American institutions. In the Fall of 
1850, he was elected a memher of the Assembly, the pop- 
ular branch of the State Legislature, from the county in 
which Marysville was situated. This Legislature com- 
menced its session on the first Monday of January, 1851, 
and he was confessedly the leading and most efficient mem- 
ber of the body; many of its most important and perma- 
nent acts were planned, proposed, and adopted through his 
agency. At the expiration of the session he returned to 
Marysville, resumed the practice of his profession, and 
soon attained the recognized position of one of the fore- 
most lawyers in the State, and so continued until, in the 
Fall of 1857, he was elected a Justice of the State Supreme 
Court for the term of six years, commencing on the first 
of January, 1858. At this election 93,228 votes in all 
were cast; of these he had 55,216, one of his competi- 
tors, 18,944, and the other, 19,068, so that he received a 
majority of more than 36,000 over each of the other 
candidates, and of 17,204 over both combined. A va- 
cancy occurring on the Bench through the death of one 
of the justices, he was appointed by the Governor for 
the unexpired term, and took his seat on the 13th of Octo- 
ber, 1857. On the resignation of Chief Justice Terry, in 
September, 1859, he became Chief pjustice. He remained 
HI this high office until, in 1863, he was removed to the 
still higher position— a seat in the Supreme Court of the 
United States. On March 3d, 1863, a statute of Congress 
was approved by the President providing for an additional 
justice of the Supreme Court, and making the States on 
the Pacific Coast a new circuit. On the recommendation 
of the entire delegation in Congress from those States, 
con-biVjIaNg of four Senators and four Representatives,^of 
whont/nve were Democrats and three Republicans, and all 
Union men, — Judge Field was nominated by President 



18 

Lincoln, iiinl his iiominatiou was iinaiiiuioiislv . Miiliinicd l.v 
tlie Senate. He resiu-iu>(l the State Ju(l^-eslii|., and tenk ihr 
oatli of office as ju«li>;e of tlie United States SnprcMir C.piiit 
on the20tljof Mjiy,1863. Jlisconunission was issued Mar. h 
10th, but lie gave the following explanation ol' his sch'r- 
tion of May 20th, for entering upon tlic (hitics nf t)i,. ,,|"- 
tice. it was necessary that he should postiMuic his ictii-c- 
nient from the State Bench for a while, in order that the 
('ourt might decide the causes which had ahva.ly heen 
argued and submitted for decision, so that the parties ne.'d 
not be put to the delay and expense of re-arguments. He 
chose the 20th of May because he believed the causes 
argued would be by that time decided, and because it was 
the birthday of his father; he thought that his father would 
be gratified to learn that on the 82d anniversary of his 
own birth, liis son had become a Justice of the Suj)renie 
Court of the United States. 

Having thus mentioned the most important events of 
Judge Field's life, I shall analyze and describe his work 
(1) as a Legislator in the early days of California; (2) as 
a Judge of the California Supreme Court; and (o) as a 
Justice of the Supreme Court <»f the United States. 

l.^Jndf/r FirbPs irorl: >is a Ln/ish/tnr. 

In order to appreciate the extent and ini[)ortance of 
dudge Field's legislative work during his single term of 
otlice,and the lasting effect which it has produced not only 
upon California, but upon otiierand especially the mining 
States, the anomalous condition of the State at that early 
day must be fully understood. 1 siiall make no attempt to 
describe the mere social features of California during the 
years succeeding the discovery of gold; they have been 
often portrayed by masters in the art of word-painting. F 
shall refer to the condition of tlie State so far t ' as 
relates to the law, and the special property interests v. hicli 
then existed, 



14 

The discovery of gold, as is well known, bi-ouglit a I'usli 
of emigrants from all parts of the United States, from 
European counti'ies, from Australia, and even from the 
Pacific Islands and China. In addition to this heteroge- 
neous mixture of all nationalities was the element of 
native Mexican or Californian population. Among these 
earl\' comers, some were men of high character, intelli- 
gence, and culture, well fitted to 'oe leaders in the com- 
munity. A larger number were of less education and 
culture, hut still were full of energy, and, coming from the 
United States, were inclined to be law-abiding, possessing 
at least some of the American feeling of respect for the law 
and love of justice. A third, and it must be confessed, a 
large class, consisted of the worst characters of the older 
communities, rogues, knaves, gamblers, and professional 
criminals, acknowledging no law, and defying all law. 

The law itself of the country was unsettled. The civil 
law, as formulated in Spaidsh codes and applied to 
Spanish colonies, modified in few particulars by Mexican 
legislation, prevailed prior to the cession of California to 
the United States. Large tracts of land were held by 
grantees under concessions from Spain or Mexico; and the 
law in force contained provisions unlike any doctrines of 
the common law, concerning the organization of " pueblos" 
or towns, which were the basis of proprietary and munici- 
pal rights of enormous value; and it prescribed regulations 
for mining, and for the occupation of mineral land different 
froin the common-law rules applicable to the same sub- 
jects. 

The stream of immigrants which poured into the State 
brought along witli them their own customs, opinions, and 
preferences. At home they had been familiar with a great 
variety of laws, and they naturally preferred to follow those 
legal rules to which they had been accustomed. The East- 
ern States had mostly been settled by a homogeneous pop- 
ulation, all familiar with the common law, and they adopted 
it without a question, The same was true with respect to 



1.-) 

the States of the Ohio and Mississippi Valleys. But sueli 
was not the case with Caliiornia; no such lioniogeneity ex- 
isted among its poojilo. And it was perceived hy intelli- 
gent and thoughtful men, that the common hiw of Enghuid, 
adopted by the tirst Legislature as a I'ule of decision in 
the courts, when not repugnant to the constitution and laws 
of the State, did not meet the exigencies and conditions of 
the country. Many of its most characteristic and funda- 
mental principles and doctrines were unfitted for the new 
commonwealth, partly tVom the anomalous condition of 
society, partly- from the etfect of the pre-existing system 
of Spanish-Mexico, and partly from a great variety of most 
important proprietary interests, which had not existed in 
countries wliere tlie common hiw prevailed, or had ex- 
isted under conditions essentially ditl'ei'ent from those pre- 
sented by California. 

The proprietary rights to which I refer, and w hich at that 
time surpassed in value all others within the State, were 
those growing out of the mining industries, the claims of 
miners to occupy portions of the public mineral land, and 
to extract the mineral, the works constructed by them to 
aid in opening and developing the mines, and the ap- 
propriation of water in the mining region for that and 
other lieneticial purposes. Xo legislation, either State or 
national, had yet been enacted concerning these subjects. 
And the intricate and restrictive system of the Spanish- 
Mexican codes was as inapplicable as the doctrines of the 
common law. The seekers for gold, who had been drawn 
from all parts of the earth, were thus left to adjust their 
respective rights and claims as best they might. 

The mineral lands, as a whole, belonged to the United 
States, as a part of the public domain ; but dilferent opin- 
ions prevailed with respect to the ownership of the min- 
erals themselves while still remaining in the soil. Some 
persons maintained that they belonged to the United 
States, others that thev were owned by the State, but the 



conviction was anivorsal that neither tlie national nor the 
State government should assert any right of ownership, 
and that its assertion would greatly impair the develop- 
ment ot" the mineral wealth of the country. The immi- 
grants had poured over the mineral regions, settled down 
in every direction, appropriated parcels of the territory to 
their own use, and were prospecting and mining in every 
mode rendered possihle by their own resources, under no 
municipal law, and with no restraint except the danger of 
conflict with other and more powerful parties who could 
wield a gi'eater physical force. As justly observed b}" one 
who, at the time, was observant of the conduct of the 
miners, " the situation was a grave one, and it demanded 
statesmanlike treatment. To do nothing was to leave 
the peace of the State at the mercy of those whose fierce 
thirst for gold might outrun their respect for fair dealing. 
Honest misunderstandings as to facts were oftenest settled 
by immediate appeal to brute force. The woi-ld has prob- 
ably never seen a similar spectacle — that of extensive 
gold-fields suddenly peopled by masses of men from all 
States and countries, restrained by no law, and not agreed 
as to whence the laws ought to emanate by which they 
would consent to be bound." 

In this condition of the country the miners had taken 
some most important steps, which illustrate in the clearest 
manner the love of order and justice, and respect for law 
which characterize American-born citizens of all classes, 
and which prevented the destructive consequences, that 
otherwise would have resulted from the absence of any 
municipal law. They were scattered over the territory 
in larger or smaller groups, located at different places, 
technically known as " camps," " bars," or " diggings." 
In each mining district they had held meetings and had 
enacted rules and regulations by which they agreed to be 
governed in that district. These rules were simple, but 
related to the most important questions of property, to 



17 

priority in claims, and the extent of gronticl wliii'li otic 
person could appropriate. The rules once adopted wei-e 
enforced with rii;-(»r uiion all settlers in the parlicuhir 
cani[). This vohmtary, self-imposed lei^Mslation ()rii;iiiate(l 
with the American immigrants, and they were ordinarily 
so su[»orior in numhcrs that they could com[)el oljedience 
hy the less law-ahiding foreignei's. The rules they ado^jted 
governed the extent of each individual claim at the partic- 
ular locality, and prescrihed the acts necessary to constitute 
such an appropriation of a parcel of mineral land oi- por- 
tion of a stream as should give the claimant a jirior right 
against all others,, the amount of work which should entitle 
him to continued possession and enjoyment, what sliould 
constitute an ahandonment, and like fundamental condi- 
tions to the acquisition and use of their respective claims. 
These rules differed in their details in the various camps, 
hut there was still a general similarity among them all. 

In this condition the Legislature of 1851 was called upon 
to act. Mr, Field, as the result of accurate knowdedge and 
careful study, determined upon a legislative policy. He 
understood the material upon which any legislation must 
work; he was familiar with the miners as a class, and knew 
their habits and peculiarities, their common sense and gen- 
eral love for fair play, coupled with strong will and occa- 
siomil violence. He saw at a glance that the Legislature 
could not enact any compli(!ated system of mining law that 
would not interfere with the regulations wdiich they them- 
selves had estahlished, and under which their claims were 
protected. The plan which he finally concluded to pro- 
pose,- and, if possible, procure to be adopted, was simple, 
and its very simplicity may, at first blush, tend to ob- 
scure its wisdom ; but all possible doubts in that respect 
have long since been settled by its complete success. The 
root idea of this plan was that the rules voluntai'ily im- 
posed upon themselves by the miners should receive the 
sanction of the law, and as laws should b^ enforced by the 
courts in adjudicating upon mining rights and claims. 



18 

He, therefore, drew up and ottered to the Legislature the 
foUowhig provision, which, through his advocacy, was 
adopterl and incorporated into a general statute regulating 
proceedings in civil cases in the courts of the State : 

" In actions respecting mining claims, proof shall he 
admitted of the customs, usages, or regulations estahlished 
and in force at the bar or diggings embracing said claim-!, 
and such customs, usages, or regulations, when not in con- 
flict with the constitution and laws of this State, shall gov- 
evn the decision of the action." 

The far-sighted sagacity, expediency, and wisdom of this 
provision have been c<jnclusively established by the ex- 
perience of thirty years throughout all the Pacific Mining- 
States and Territories. The same fundamental principle of 
recognizing and giving the force of law to the local cus- 
toms and rales of the miners has been continued without 
change in the subsequent legislation of California, and has 
been incorporated into the statutes of the other Mining 
States. It has also been accepted by Congress; and with 
some modifications in detail, and especially with the addi- 
tion of a^ more certain and nniforin specification as to the 
extent of each mining claim and the modes of location 
and appropriation, it has been made the basis of the laws 
enacted for the government of the public mineral lands. I 
therefore venture the opinion, and think that its correctness 
cannot be questioned, that no single act of creative legis- 
lation, dealing with property rights and private interests, 
has exceeded this one in importance and. in its effects in 
developing the industrial resources of the country. The 
causes which led to its enactment, its simple but efficient 
nature, and its beneficial consequences, cannot be better 
described than in the language of Judge Field himself, in 
an opinion dehvered many years afterwards in the Su- 
preme Court of the United States, in the case of Jennison 
vs. Kirk, an extract from w^hich is given on pages 6, 7, 
and 8 of the accompanying volume. 

This enactment gave the force of law to an equitable sys- 
tem of mining and water regulations, and has been the di- 



19 

rect means of [H'oiiiotiiii;- and protecting an industry wliirli 
has secured and added an nnt(dd amount to the total weaUh 
and resources of the country, L cannot leave this suhject 
without a hrief comn\ent u[)(>n the social events themselves 
which I have Iteen deserihing — events nnexani|iled, I 
think, in the history of any other peoi.le, 'Fhe whole cnn- 
(hict of the ndners, their voluntary adoi^tion, in the ah- 
sence of all municipal law, of regulations so Just, wise, and 
equitahle that neither the State nor the national go.vern- 
meiit has attem[)ted to improve them, exhihits in the 
most striking manner those (pialities which lie at the has[s 
of the American character. ISt) long as these qualities last, 
so long as American citizens, individually or collected 
into communities, possess and act upon these conservative 
tendencies, the liherti'es, safety, and perpetuity of the 
nation rest upon a certain and immovable foundation. 

In addition to the provision concerning mining claims, 
Mr. Field was also the author of many other measures of the 
greatest importance to the State, which was then just com- 
mencing its wonderful course of development. As most of 
these enactments relate to the internal atfairs of California, 
and have been contined in their operation to that common- 
wealth, I shall merely enumerate them, with such brief 
descri[»tion as will serve to indicate their purpose and 
character. Being a member of the Judiciary Committee, 
Mr. Field's work naturally related, in the main, to the ad- 
ministration of justice. Among the most important of 
these measures, planned and drawn up by him, was a bill 
concerning the Judiciary of the State. This act was gen- 
eral, deaUng with the whole judicial system, and requiring 
great labor in its preparation. It completely reorganized 
the judiciary, and defined and allotted the jurisdiction, 
power, and duties of all the grades of courts and judicial 
oiiicers. An act passed in the subsequent session of 1858, 
revising and amending in its details the original statute of 
1851, was also drawn up by Mr. Field, although he was 
not then a mend)er of the Legislature. The system then 



20 

planned and established in 1851, and im[)roved in 1853, 
and again in 1862, to conform to the constitutional amend- 
ments of the previous year, was substantially adopted in 
the codes of 1872, and continued in operation until it was 
displaced by the revolutionary changes made in the new 
constitution of 1879-80. In connection with this legisla- 
tion atfecting the judiciary, Mr. Field also drafted and 
procured the passage of an act concerning county sherifis, 
defining all their official functions and duties; an act con- 
cerniug county recorders, creating the entire sj-stem of 
registry which has since remained substantially unaltered; 
and an act concerning attorneys and counsellors at law, by 
which their duties were declared and their rights were pro- 
tected against arbitrary proceedings by hostile judges. 

He also prepared and introduced two separate bills to 
regulate tlie civil and criminal practice. These acts were 
based upon the Code of Civil Procedure, and the Code of 
Criminal Procedure proposed by the New York commis- 
sionei's,but they contained a great number of changes and 
additions made necessary by the provisions of the Cali- 
fornia constitution, and by the peculiar social condition and 
habits of the people. They were by no means bare copies 
taken from the New York Codes, since Mr, Field altered 
and reconstructed more than three hundred sections and 
added over one hundred new sections. The two measures 
were gerierally designated as the Civil and the Criminal 
Practice Acts. They were subsequently adopted by the 
other States and Territories west of the Rocky Mountains. 
They continued with occasional amendments in force in 
California until the present system of more elaborate codes 
was substituted for them in 1872; and even this change 
was more in name than in substance, since all tiieir pro- 
visions substantially reappear in some one of these codes. 

In the Civil Practice Act he incorporated the provision 
above mentioned respecting mining claims. He also in- 
corporated into it another provision, which has become a 
permanent featm-e of the legislative policy of California, 



21 

and has proved of inestimable benefit to its population — 
the provision exemptins: certain articles of property of 
judgment debtors iVoni seizure and sale u[>()n execution. 
Some exemption has long been found in the statute- 
books of every State, but it lias ordinai'ily ix'eii small in 
amount and value, restricted to householders, and extend- 
ing only to a few articles of absolute necessity for the ex- 
istence of a family— such as a little kitchen and bed-room 
furniture, bedding, clotbing, and a few other similar ar- 
ticles. Mr. Field justly thought that the scheme qf ex- 
emption sliould, especially in a new State, be planned 
after another policy, — a policy of generosity as well as of 
strict justice, believing that even the strictest justice and 
the claims of creditors would be better subserved thereby. 
The fundamental principle of the plan proposed by him 
was, that every person, in addition to those articles neces- 
sary for individual preservation, such as clothing, reason- 
able household furniture and effects, and the like, should 
be secured in the possession and use of those things by 
which, as necessary means and instruments, he pursues his 
profession, trade, business, or calling, whatever it may be, 
and acquires the ability of paying the demands of his cred- 
itors. This law, therefore, exempts, not only household fur- 
niture and the hke, but the implements, wagons, and teams 
of a farmer, the tools of a mechanic, the instruments of a 
surveyor, surgeon, and dentist, the professional library of a 
lawyer and a physician, the articles used by the miner, the 
laborer, etc. In this connection it should also be stated, 
that, though not its author, Mr. Field was a most strenuous 
supporter of the Homestead Bill, which finally passed after 
a severe struggle. At that time there was no exemption 
whatever of personal property in California, and none 
equally extensive to be found in the previous legislation 
of any State of the Union. It is understood by those who 
are familiar with Judge Field, that he looks back with 
greater satisfaction upon the exemption system which he 
thus (n-eated than upon any other of his legislative work. 



It lifted a lieavy load iVoiii debtors, ciiaMcd lli-Mii to ]>nr- 
sue their calliiiu'.s with freedoui, and instead oi' defeating 
the ends of justice by preventing the collection of debts, 
it has actually operated in favor of creditors, by securing 
the means whereby debts can l)e paid. 

Mr. Field also drew a bill creating the Counties of jSTe- 
vada and Klamath. As there was nmch complaint at the 
boundary lines of several counties in the State, various 
Ijills for their correction had been presented. These being 
referred to him, he reported a general bill revising and 
amending the bill of the previous year, dividing the entire 
State into counties, and establishing the seats of justice in 
them, in which the provisions for the new counties were 
incoi-porated; and the bill passed. lie also drew the char- 
ters of Marysville, Nevada, and Monterey; and the bill 
regulating divorces and detining the causes for which 
marriages may be annulled and absolute divorces granted. 

The foregoing summary shows an enormous and, I ven- 
ture to say, an altogether unprecedented amount of legis- 
lative work, conceived, prepared, perfected, and accom- 
plished by one man in a single session of only a few 
months in duration. The influence of this legislation 
upon the people and the material prosperity of California 
has been simply immeasurable; but it has not been eon- 
lined to the limits of a single State; it has extended over 
the entire Pacific Slope, and especially through all tlie 
mining regions. 

II. — His work (fs (I Mejnhcr of i/ie Calif orrtia Suprcnir Court. 

The direct effects of Judge Field's work on the State 
Bench, various and important as it was, have, of course, 
been confined to the State of California; and it is little to 
say that he has contributed more than any othei- of the 
judges to settle the jurisprudence of that State upon a 
broad and scientific basis of justice and equity. 

As a student of the California law, I venture the opinion 
that wherever the present codes ]iave departed from ihe 



rules laid down I)_v liiiu in his decisions, or in statntos of 
Avhicli he was the author, it will be found that the ehan^'e 
has he'en lor the worse — that it has j.rodueed ineonveni.Miee 
and sonietinies injustice, 

The liHllrcit etiects of his work have extended through- 
out the whole eountrv, in two distinet forms: Flv^^t. Many 
particular conclusions arrived at by the Court tiirough his 
influence, and embodied in positive rules for the State of 
California, and, in some instances, incorporated into its 
statutory legislation, have been bori'owed by the Courts 
and Legislatures of other commonwealths ; and thus, 
while directly constructing the law for one State, he 
has actually performed the same labor for other States of 
the Union. Seronilh/. Tlie general doctrines which he as 
a judge, or the Court under his lead, has discussed, ex- 
pounded, and declared in judieial o[tinions, have exerted 
a powerful influence in aiding the decisions of other 
tribunals and in shaping the development of legal and 
equitable principles in other parts of the Vnited States. 

In the examination which I shall now make of his 
work in the State Supreme Court, I shall not attempt 
to describe in detail any causes in the decision of which 
lie took a part, nor to quote from his legal opinions, 
nor to narrate the legal controversies which he aided in 
adjusting, nor even to discuss tlie legal principles and doc- 
trines w-hich he determined. The most important of these 
causes, opinions, controversies, and doctrines may l)e found, 
set forth at sufficient length and fully explained, in the 
printed vohmie to which this sketch is designed as an in- 
troduction. It would be a useless expenditure of time and 
lal)or for me to recapitulate in a condensed form the mat- 
ters of fact which are there more elaborately displayed. 
For this account in all its completeness of detail I simply 
refer to that section of the volume which deals with 
his labors while a judge of the Supreme Court of Cal- 
ifornia. The single purpose of this second division will 
be to portray his character as a judge; to describe the gen- 



24 

eral nature of liis Slate judieial work as a whole, and to 
enumerate the most important legal principles and 
branches of the State jurisprudence which were deter- 
mined and establislied by him, and by the Court through 
his influence. 

In order to form any adequate conceptioti of his judi- 
cial character, the nature and extent of his judicial work, 
and the vast results w'hich it accomplished, it is neces- 
sary^ to understand and to appreciate clearly the remark- 
able and wholly anomalous condition of the law at the 
time when he took his seat in the court. I have ah-eady 
spoken of this condition in general terms, Cahfornia was 
utterly unlike any of the other States at their early settle- 
ment. From the heterogeneous mass of immigrants, every 
variety of legal notions, habits, customs, and national sys- 
tems was represented among the population. The com- 
mon law was not accepted as a whole, and how far its 
principles should prevail as the foundation of the State 
j urisprudence was not determined. The civil law^, moditied 
and adulterated by passing through the Spanish-Mexican 
Codes, was acknowledged as furnishing the rules control- 
ling many of the older land titles. 

In the absence of positive law, tlie various settlements 
and collections of miners had adopted local regulations 
concerning mining and water privileges, which were 
treated as having the force and effect of law. The great- 
est amount, however, of embarrassment and difficulty 
presented arose from the vast number of peculiar inter- 
ests, industries, and proprietary rights and claims, wholly 
unlike anything to be found elsewhere in this country, 
and for which the principles of the common law and of 
equity, and the statutes of England and of the other States, 
furnished few, if any, analogies. Among these were the 
mines and all mining operations, water claims, ditches, 
irrigating canals, the titles to minerals in the soil, and 
the Mexican titles to land grants. In fact, the California 
judge was obliged to perform his work Avith little help 



from his previous knowledge of the law in the settlement 
of these and similar questions — questions entirely differ- 
ent fr*)in those which had been presented to other courts, 
American or English. He was required to frame a State 
jui-isprudence de uoro — to create a system out of what was 
at the time a mere chaos. Three distinct matters fur- 
nished the material for the nK)st important as well as vio- 
lent controversies, involving legal questions of the utmost 
difficulty and magnitude, affecting pecuniary interests to 
an incalculable amount, and provoking most bitter ani- 
mosities among the opposing parties — which animosities 
were often directed against the judges when the unjust 
and illegal claims of individuals or communities were de- 
feated. These matters were: 1st. The immense extent 
and indefinite boundaries of the Mexican land grants. 
2d. The occupation by settlers of the public lands belong- 
ing to the United States, before the government had taken 
any steps to provide regulations for their use and sale. 
3d. The mineral resources, the mining and water rights, 
and the claim of California to own the gold and silver 
found in any lands situated within the State. 

Added to this unprecedented condition of the law was 
the equally unprecedented condition of all business rela- 
tions subsisting between individuals, which cannot be bet- 
ter portrayed than l)y quoting the language of an associate 
with Judge Field upon the Supreme Court Bench of the 
State : 

"When, in addition, it is considered that an unex- 
ampled number of contracts, and an amount of business 
without parallel, had been made and done in hot haste, 
with the utmost carelessness; that legislation was accomp- 
lished in the same way, and presented the crudest and 
most incongruous materials for judicial construction; and 
that the whole scheme and organization of the government, 
and the relation of the departments to each other, had to 
be adjusted by judicial interpretation, — it may well be con- 
ceived what task even the ablest jurist woukl take upon 
himself when he assumed this office." 



26 

On the whole, the OaHfornia judges were confronted hy 
a task enormous in its diiticuUy and importance; wholly 
unprecedented in the leo-al and judicial history of the 
country; with little aid from the doctrines of jurispru- 
dence prevailing in other States; and requiring to be grap- 
pled with, adjusted, and settled without delay, upon a just 
and sohd basis. Their difficulties were still further en- 
hanced by the character and dispositions of a large por- 
tion of the population. As was inevitable, the absence of 
legal and social restraints had induced great numbers of 
persons to engage in the most extensive schemes of fraud- 
ulent acquisition, of grasping and accumulating property 
through an open disregard of others' rights, of asserting 
the most unscrupulous and unfounded claims, of over- 
riding law, order, equity, and justice in every possible 
manner, having the semblance of legal sanction. These 
persons were often influential, and could control the new^s- 
papers and other organs of temporary popular opinion. 
When their projects were thwarted by judicial deci- 
sions, they attempted to coerce the Court by public at- 
tacks of the most bitter nature upon individual judges, 
attacks such as have never been known, and would never 
for a moment be tolerated in the Eastern States, but which 
the Court was powerless either to prevent or to punish. The 
most able and upright members of the Court were made 
the objects of virulent abuse, the extent and fierceness of 
wdiicli we can hardly realize at the present day. It is true, 
that in the course of time, the truth gradually asserted its 
power, tlie public mind appreciated the justice and integ- 
rity of the decisions, perceived their wisdom, and acknowl- 
edged their beneficial results. Xotwithstanding this com- 
plete change in the popular opinion, now at the present 
day the old abuse is occasionally revived; individuals 
whose schemes were defeated still pursue the court with 
their hostile criticisms. As Judge Field stood pre-emi- 
nent among his associates in the fearless discharge of duty, 
he has been the especial object of tliese persistent libels. 



27 

Such being the problem presented to the California Su- 
pi-enie Court, it should be added, in forming a just esti- 
mate of Judge Field's work, that up to the time when he 
was placed upon the Bench, much less had been done to- 
wards its permanent solution than the public had a i-ight 
to expect. The Court, in its early years, had not always 
commanded that entire confidence and respect of the 
public which are essential to any tribunal, if its judgments 
are to have moral weight in a community in settling dis- 
puted questions and putting controversies at rest. While 
some of its members were men of great ability and learn- 
ing, and would have added to the strength of any Court, 
some of them had not had much experience at the bar, 
and were not possessed of the requisite acquirements for 
their position. And it must be confessed also that some 
of them, by their hal)its, had subjected themselves to un- 
pleasant comment, and the Court had thus sutiered in public 
estimation. It would subserve no useful purpose to enter 
into any particulars. The distinguished members of the 
Court of those days now living nve the most ready to ad- 
mit and deplore the truth of this statement. Their use- 
fulness was greatly impaired by the circumstances men- 
tioned, of wliich no one was more forcibly impressed than 
themselves. 

The most iuq»ortant work of Judge Field was done 
after Judges Baldwin and Cope had become his associates 
on the Bench. They were able and learned judges, and 
fully bore their share of the labors of the Court. Some 
of their opinions were admirable specimens of judicial 
reasoning. Yet it is admitted l)y all who were personally 
acquainted, as contemporaries and juirticipants, with the 
judicial history of the State, and it is a truth patent to 
all who have obtained their oidy knowledge from the 
reports of decisi(Mis during his term of olhce, that he 
assumed and maintained the position of leadership. In 
the fundamental principles adopted 1)v the Court, in the 



28 

doctrines which it announced, in the whole system which 
it constructed for the adjustment of the great questions 
hereinhefore described, his controUing influence was ap- 
parent; his creative force impressed itself upon his asso- 
ciates, guided their decisions, shaped and determined their 
work. The pre-eminence which he thus attained was 
universally recognized. 

Many of the decisions of the Court, however, though ex- 
hibiting great ability and learning, were of local interest 
alone, dealing with matters confined to California, or, at 
most, to the Pacific Coast. But in its dealings with mat- 
ters of general interest, with the principles and doctrines 
of common law and of equity, with municipal and private 
corporations, and with constitutional law, it rapidly rose 
in the estimation of the profession, until it reached a po- 
sition of authority with the Bench and Bar of the country 
second to no other State tribunal.* 

It would be a comparatively easy task for one who was 
personally a stranger to Judge Field, and was only ac- 
quainted with him through his reported decisions, to form 
a correct estimate of his judicial character. Its important 
elements, those which distinguish him from the other 
judges, and which constitute the special grounds of his 
success and of his power, stand out in clear-cut Hues upon 
all the creations of his oflicial laboi's. He has stamped him- 
self—his intellec.iial and moral features — deeply into all 
the work which he has done. From my own personal 
acquaintance with him, but chiefly from a careful study 



* About four years ago I was told by a gentleman, who for many years 
had been employed by a leading law publishing house of Boston as its 
travelling agent throuigh all the States of the Mississippi and Ohio Val- 
leys, that when he first began his work the New York reports were uni- 
versally sought for in every State, but that of late years the demand had 
changed from the New York to the California reports. Everywhere through 
the Western and NorthAvestern States, he said, the profession generally 
wished to obtain the California reports as next in authority after those 
of their own States. This fact alone speaks volumes. 



29 

of all liis important judgments rendered both wliile a 
member of the State Court, and after liis transfer to tlie 
I^J^ational .Indit'iarv, r have arrlvi'd at the followini; con- 
clusions, which I unhesitatingly submit as the most strik- 
ing and distinctive elements of his judicial character and 
work. They are undoubtedly the very qualities which, 
in our system of jurisprudence, steadily developing 
through the creative functions of the courts, mark the 
ideal judge; — the qualities which have been held by, and 
which admit him to be ranked with, the very foremost 
class of jurists who have sat upon the English and Amer- 
ican Bench, — the class which endjraces among others the 
names of Hardwicke, Manstield, Cottenham, and Cock- 
burn, in England, and Marshall, Kent, Story, Sliaw, and 
Denio, in America. 

In the first and lowest place, he possesses an ample legal 
learning. It cannot be pretended that he has that exact 
knowledge of technical common-law dogmas which dis- 
tinguished such a judge as Lord Kenyon or Baron Farke, 
or of the intricate minutiae of real estate and conveyancing 
law which alone gave Lord Eldon his pre-eminence among 
English chancellors, — a sort of knowledge which with a 
certain pedantic school has passed for the highest legal 
learning, but which is worse than useless rubbish for the 
American judge of to-day. Judge Field's learning, as a 
distinctive feature of his intellect, is ratlior the capacity in 
an extraordinary degree to acquire the new knowledge 
made necessary by the demands of his position; — the ca- 
pacity to investigate sources and systems of jurisprudence 
hitherto unknown, to sift truth from error, to extract what- 
ever there is of living principle, and to appropriate and to 
assimilate the materials thus obtained with the State or 
national law which he is administering. He brought to 
the Bench a mind stored with the doctrines of the com- 
mon law and of equity, great intellectual vigor, and a most 
remarkable capacity for rapid and sustained mental labor. 
The exigencies of his position required him to investigate 



•30 

tlie Spaiiish-Mexieiui Codes, wliicli fui-nislK'd tlio authori- 
tative rules concerning " pueblos," with all the municipal 
and proprietary rights flowing therefrom, and concerning 
the Mexican Govermental grants to private owners, and 
also to create general principles and doctrines for which 
the common law and equity of England and the United 
States aiibrded very few if any analogies. It is enough 
to say that his learning, his intellectual power, and his 
thorough and accurate study of foreign systems, were 
always adequate to meet the requirements of the occa- 
sion. Still, I regard Judge Field's mere technical legal 
knowledge — the facts which he has acquired in a concrete 
form and stored up in his memory — as a very subordinate 
element in his judicial character. In this mere learning 
ho is undoubtedly surpassed by many judges who are not 
only otherwise his inferiors, but who have never even at- 
tained to any comparative distinction in tlieir own States, 
iiut in the liigli intellectual power, which I have attenq_>ted 
to descril)e, the power to analyze, to sift, to select, to ap- 
propriate truths, pi-inciples,and doctrines, and to assimilate 
them with the jurisprudence already established, and above 
all, to create where there was no material from which to 
l)orrow, he has been equalled by few, and, in my opinion, 
surpassed by none of the modern American judges. 

The second and much more inq3ortant element which 
I shall notice, is his devotion to principle; — that quahty of 
intellect which leads him, on all judicial occasions, to seek 
for, apprehend, and appreciate principles, rather than to 
rest satisfied with mere rules, although sustained by prece- 
dent, and to apply firmly these principles where found in 
all their relations and consequences ; — to place his deci- 
sions upon the sohd basis of fundamental and universal 
principles, rather than upon arbitrary dogmas. This qual- 
ity gives a most marked unity, consistency, and universal- 
ity to his decisions, not only to those connected with some 
single branch of the law, but to those belonging to any 
and all departments. llis adju<lications generally will 



31 

thus 1)(» found related to each other, hannonions, coitc- 
!s[)()ii(linii,- [)ai'ts of one completed system. This metliod of 
tidheriiiii' to pi-iiiciple as the sure and constant <::uid(! in 
ascertainini>', intevpretinii', and ap^ilyini^ the law, is tlie 
immediate and efficient cause of that most remarkahle 
consistency which runs through all liis judicial utterances. 
I shall have occasion to speak more in detail ol' this special 
feature of consistency, when descrihing his Judgments 
upon questions of constitutional law ; ami although it 
appears, perlia[)s in the most striking manner, in that 
class of cases, it is still a distinguishing mark of all his 
work. The power of discovering, apprehending, and ap- 
plying principles, is the highest mtdlectudl faculty of tiie 
ideal judge ; it takes the place of, and is universally supe- 
rior to, any amount of mere leariung ; it is the very 
essence of the best learning which can be employed in 
the judicial station. In fact great learning alone, wdth a 
total absence of the power to comprehend, combine, and 
enforce the general truths of jurisprudence, would un- 
doubtedly be more dangerous on the Bench, more liable 
to produce injustice, than comparative ignorance. This 
intellectual quality of appreciating and applying princi- 
ples, of discovering their mutual relations, of following 
them to tlieir legitimate consequences, and of applying 
them in the deduction of particular rules, which Judge 
Field possesses in sucli a high degree, has rendered his 
opinions exceedingly' useful to text-writers, who have fre- 
quently spoken of them in the highest terms of praise. 
As has already been said, many of his judgments, pro- 
nounced while in the State Court, relate to matters of 
purely local interest, such as the pecuhar land titles of 
California, the Mexican pueblos, the ownership of gold 
and silver in situ, mining and water rights, etc.; and this 
class of cases undoubtedly re(|uired for tlieir decision the 
greatest amount of original investigation, tracing of ob- 
scure analogies, and creative power, — an expenditure of 
intellectual force which can liardly be appreciated by tlie 



32 

profession in other piirts of the country who are unfaniihar 
with the intricate questions involved. On the other hand, 
many of his opinions deal with subjects of universal in- 
terest, as for example, the powers and liabilities of munic- 
ipal and of private corporations, the nature of mortgages, 
tlie validity of Sunday laws, etc. These judgments have 
uniforndy been regarded by the profession and courts of 
other States, and by text writers, as having the highest 
authority. They have been quoted with the strongest lan- 
guage of approval l)y such authors as "Washburn and 
Dillon ; and their clear and accurate statement of princi- 
ples renders them peculiarly instructive to students of the 
law in all parts of the Union. 

The third distinctive element requiring special notice is 
what may appropriately be called his creative power. By 
this designation I mean his ability in developing, enlarg- 
ing, and improving the law, by additions of new material, 
whether this material be l)orrowed from foreign sources or 
ci-eated by means of the legislative function belonging to 
all Superior Courts. The intellectual attributes referred 
to in this and in the preceding head are entirely distinct; 
they may co-exist in the same individual, or the first may 
be possessed in a high degree without the other. The tirst 
deals with the jurisprudence as it has already l)een estab- 
lished, investigating, examining, and expounding or ap- 
plying its settled principles and doctrines; the other is 
creative and legislative, employed in constructing new 
law, or reforming and expanding that which already ex- 
ists. Many judges of great and well-deserved reputation 
have possessed the first quality to a remarkable extent, 
without any of the second — of which class, I think. Judge 
Story was an example. Judge Field's peculiar talent as a 
legal reformer was shown in his purely legislative work 
done while a member of the State Assembly, and de- 
scribed in a previous division of this essay. He exhibited 
the same power and tendency upon the Bench. They 
were shown in his constant rejection of ancient common- 



33 

law (loi2:inas, no iiiattei- how liniily settled upon authority, 
which had become outi2;rown, obsolete, and unfitted for the 
present condition of society, and in the substitution of 
more just, consistent, and practical doctrines adapti-d to 
the needs of our own country and people, I merely men- 
tion, as sutHcient examples of this class, his decisions upon 
the nature and effect of mortgao:es, and those concerning 
the ownership of gold and silver while in the soil, by 
which he boldly swept away the common-law rules on the 
subject, with all the absurd reasoning upon which they 
had been founded. The same power and tendency were 
shown in his accurate perception of those principles and 
rules contained in foreign systems of juiisprudence which 
should he borrowed and incorporated into the judicial leg- 
islation of the State, both for the purpose of protecting 
many peculiar rights of property and special interests, and 
of regulating social relations, existing in California but 
unknown in nearly all the other States. Illustrations of 
the first kind may l)e found in his series of most important 
decisions concerning ''pueblos" and the municipal and 
proprietary rights belonging to tliem; and concerning 
Mexican land-grants, in which the rules were borrowed 
from the Spanisli-Mexican codes; and in those concern- 
ing the occupation of public lands and mining and water 
rights. A most illustrative example of the other kind is 
seen in his decisions relating to the community property 
of husband and wife,— an incident of the marriage rela- 
tion derived from the Spanish-Mexican jurisprudence, — 
which placed the rights of the two spouses in that unique 
species of property upon a firm and equitable foundation. 
The same power and tendency are shown in his decisions 
concerning procedure, in which he more ably and con- 
sistently, perhaps, than any other judge, has carried into 
operation the true spirit and intent of the reformed Amer- 
ican procedure. 

The fourth element of his judicial character is his fear- 
lessness. As the power to appreliend and apply princi- 



84 

pies is the hii^hest iMc/J edaul qnaWty, so is a true fearless- 
ness the highest moral attribute of the ideal judge. Ko 
other American judge has so often been called upon to 
face popular opposition in the decision of controversies 
involving important legal questions, in which large 
masses of the population were interested, and on one 
side (^f which all their passions, prejudices, and seliisii 
motives were fully aroused, and often were raging in 
the tierccst manner; and no othei- judge has more fre- 
quently and faithfully dischai-ged his sacred duty of de- 
ciding according to his own enlightened convictions of 
law aiul justice, in complete oblivion of all external 
forces, and in absolute fearlessness of the consequences. 
lie lias neitber courted personal popularity nor shrunk 
from uiipo[)iilarit3'- by means of his decisions. He could 
well apply to himself the memorable and noble lan- 
guage which Lord Mansfield used from the Dench when 
made the object of a violent clamor on account of his de- 
cisions: 

" I will do my duty unawed. What am T to fear ? The 
lies of calumny carry no terror to me. I trust that my 
temper of mind, and the color and conduct of my life, 
have given me a suit of armor against these arrows. . . . 
I wish popularity, but it is that popularity which follows, 
not that which is run after; it is that popularity which, 
sooner or later, never fails to do justice to the pursuit of 
noble ends by noble means. I will not do that which my 
conscience tells me is wrong upon this occasion, to gain the 
huzzas of thousands, or the daily praise of all the papers 
which come from the press; I will not avoid doing what I 
think is right, though it should draw on me the whole ar- 
tillery of libels, — all that falsehood and mahce can invent, 
or the credulity of a deluded populace can swallow. I can 
say, with a great magistrate, upon an occasion and under 
circumstances not unlike, ' Ego hoc animo semper fui, ut 
invidiam virtute partam,gloriara,non invidiam, putarem.' " 

IsTo friend of Judge Field can estimate his intellectual 
and moral fearlessness too highly; no enemy can denj^, or 
ever has denied that he possessed it. He has repeatedly 



35 

ciu'omitoi'od, and been conipollcdto endure, the bitter lios- 
tility of extreme partisans belonging to the most opposite 
schools of opinion; of i-xtrome Repnbhcans and extreme 
Demot'i-ats; of those wlio maintain the dogma of State sov- 
ereignty, and of those \vl)0 assei't the al)sohite legislative 
power of the national government; of ignorant and [irej- 
udieed masses, and of scheming s[)^H'nlators who would dis- 
regard all law and right in order to accom[>lish their pnr- 
poses. All these outbursts of opposition have, however, 
died away; the justice and wisdom, as well as the law, of 
his decisions are vindicated. 'fliat trne po[.ularity has 
succeeded among all intelligent persons, which, in the 
words of Lord .\hinstield, " never fails to do justice to the 
pursuit of noble ends by noble means." From the very 
commencement of his career on the State Bench, and 
through all the following years, opportunities have fre- 
(piently been presented to him, in the regular discharge of 
his official functions, by wdiicli, without any plain surren- 
der of right, any obvious transgression of duty, by the 
mere adoption of a ditfcrent line of argument leading to a, 
diti'erent conclusion, — and even sometimes when that line 
of argument and that conclusion were, upon a surface view, 
correct, and were ap[)roved by a majority of the legal pro- 
fession,— opportunities, I say, by which, in this manner, he 
might have obtained an immediate and even an enthusias- 
tic popularity; but in which, by following the voice of con- 
science and duty, and the dictates of his own matured 
judgment, he was certain to encounter a storm of hostile 
criticism, and even malignant hatred. On no occasion 
was he evei- intiuenced by either of these considerations; 
on no occasion did ho ever swerve from his duty and sur- 
render his own conscience and enlightened judgment. 
My space will not permit me to review these events in 
his life. Any correct account .of the decisions made 
in the State Supreme Court concerning the pueblo of 
San Francisco and the titles derived from the muni- 
cipality, concerning the occupation of public lands, con- 



36 

cerning the State ownership of gold and Bilvei', and the 
claims of miners to enter npon all lands, pi-ivate as well 
as public, in search for the precious metals, concerning 
the rights of Mexican grantees and the intruders upon 
their lands, and concerning the validity of certain acts 
done by the municipal government of San Francisco, 
wMl exhibit in the clearest manner the quality of recti- 
tude and fearlessness which is such a distinctive element 
of his character.* In many of tlie decisions rendered in 
the United States Supi-eme Court, indirectly growing out 
of the civil war, and directly out of congressional legisla- 
tion enacted in consequence of the w^ar, including those 
dealing with the validity of test-oaths, the extent and limi- 
tations of martial law, the trial of civilians by military 
tribunals, the suspension of the writ of habeas corpus, and 
similar questions atiecting the ver}^ foundations of our po- 
litical institutions and of our civil liberties, — the same 
quality was exhibited from a higher station and in the 
presence of the whole nation. In addition to otlier in- 
stances, there is one of later occurrence which is still 
more illustrative. It may l)e aihrmed, I thiidc, without 
any real doubt as to its correctness, that during the past 
year, by his deliberate and fearless discharge of duty, 
by following his own convictions as to the law, and by 
rendering a decision in the now memorable Chinese Queue 
Case, which, however righteous and in accordance with 
the fundamental principles of constitutional law, awoke 
a storm of fierce opposition and hatred among all the 
lowest and most ignorant classes of tlie political party 
with which he is connected. Judge Field lost— nay, sacri- 
ficed — his chances, otherwise good, of a nomination by his 
party for the Presidency. It can be certainly shown that 
scheming politicians, anxious only for their own personal 
advancement, working upon this temporary unpopularity 
among the Democratic masses of California, prevented him 

* See " Persoual Reminiscences of Early Days iu California," pages 137 
to 171, inclusive. 



87 

from obtainino- the sui>port of liis own Stale, and thus ren- 
dered his nonuiiatioii bj tlie N'ational Convention ini[.()ssi- 
ble. As a moderate Republican, knowing the opinions of 
that large division of the parly commonly called "Liberal 
Republicans," I do not hesitate to express the strong con- 
viction that if Judge Field had received the nomination 
from the Democratic party, he would certainly have been 
elected. The decision as to the validity of a nnserable city 
ordinance requiring the queues of C'hinese prisoners to be 
cut olf, lost him the Democratic support of California. lie 
has, instead, the approval of his own judgment, and of all 
intelligent, thoughtful men throughout the country. 

There are other traits of his intellectual character 
and of his work, in themselves worthy of mention, such 
as his diligence, his capacity for continued labor, his 
rapidity of execution, and particularly his clear and accu- 
rate style of hterary composition, which renders some of 
his more carefully prepared opinions models of judicial 
argumentation; but I pass them by without further no- 
tice as not being distinctive, since they are shared with 
him in an equal and sometimes in a superior degree, by 
others judges both of the State and the national courts. 

I pass to a consideration of the work which he did while 
a member of the Supreme Court of California. This 
must be merely a brief reference. Any full account would 
necessarily be a reproduction of the matters contained in 
pages 16 to 38 of the printed volume. I shall, therefore, 
simply enumerate the leading decisions, arranged in groups 
according to their subject-matter, which best exhibit his 
distinctive qualities as a judge, and embody his most im- 
portant judicial work. They naturally fall into two main 
divisions: (1) Those which deal with common law and 
equitable doctrines of general interest to the profession of 
all the States; and (2) Those whicli deal with mere local 
matters, of which the interest is chiefly contined to the 
profession and people of California and the other Pacific 
States. 



1. Mati 'IS of /I f/r/iciy// infrirsf. — Amons^ tlio most import- 
ant of these to[)ic.s were the followitiL!;. The poiocrs and 
liabilities of Marddpal Corporf/tioiis. Certain transactions 
entered into and acts done l\y the governint!,- hody of San 
Francisco gave rise to a bitter judicial controversy extend- 
ing tlirough several litigations, in whicli the Supreme 
Court was called upon to examine, from their very founda- 
tions, the doctrines of the American common law con- 
cerning the powers and liabilities of Municipal Corpora- 
tions, in the absence of express chartey or other statutory 
provisions defining and limiting the same.* The opinions 
of Judge Field in these cases are universally regarded as of 
the highest authority. They are able, thorough, and ex- 
haustive decisions of the law, and reach conclusions based 
both upon principle and precedent which have been ac- 
cepted by the ablest text-writers, and especially by Judge 
Dillon, as final. 

Mortgages. — The Supreme Court, while he was a mem- 
ber of it, freed the jurisprudence of California from the 
last vestige of the old common-law notions concerning tlie 
nature and effect of the mortgage, and adopted the I'ational 
and c »nsistent erpiitable theory as the single system which 
should (letermine all private relations and should prevail 
in all tribunals, both of law and of equity. His opinions 
explaining, advocating, and enforcing this single equita- 
ble conception of the mortgage as purely a hypothecation, 
as creating no estate in the land, as a mere lien, and not a 
jits ad rem nov a jus in re, have not been excelled in their 
clearness of statement and cogency of argument by those 
of any other Court whicli has maintained the same view, 
and they have undoubtedly done nmch to promote its ac- 
ceptance in other States.t ISTo opinions upon the sul)ject 

* McCrakcn vs. Saa Francisco, 16 Cal., 591 ; Grogan vs. The Same, 18 
Cal., 608 ; Pimental vs. The Same, 21 Cal., 359 ; Argeuti vs. The Same, 
16 Cal., 282 ; Zottman vs. The Same, 20 Cal., 9;).— See the printeil volume, 
pp. 30-32. 

t McMillan vs. Richards, 9 Cal., 365; Nagle vs. Macy, 9 Cal., 426 ; 
.Tohnsou vs. Sherman, 15 Cal., 287 ; Goodenow vs. Ewer, 16 Cal., 401. — See 
printed vol., pp. 32, 33. 



89 

are more iusti-iu'tivc (nv t\\v stiulcnt in all parts of the 
conuti'v. 

Sini'if)/ Litvs.—Vndcv ii eoiistitiitioiial provision sub- 
staiitially the same as that in most other States, a ma- 
jority of the Supreme C.)urt pronounced rmconstitutional 
and void a statute wliieh simply prohibited the kei'i»in<;- 
open of business places (with certain specified exceptions) 
an<l tlie selliniz: of goods, or exposing -them for sale, on 
Sunday. It will l)e noticed that this statute was far less 
stringent than the t,ypc of similar legislation prevailing in 
most of the States. A majority of the Court saw fit to re- 
pudiate the authority of the numerous decided cases 
unanimously sustaining the validity of such a law. The 
prevailing opinion professed to uphold religious freedom, 
and delared all statutes for the preservation of quiet and 
good order on Sunday to be fn'riitrimi.* Judge Field firmly 
and most emphatically dissented. His dissenting opinion 
is an exhaustive examination and triumphant settlement 
of all the questions involved, and most ettectually exposes 
the weak positions of the majority. It vindicates l)otli the 
validity and the wisdom of such statutes, shows their uni- 
versal approval, and demonstrates their secure foundation, 
not as intended for tlie purpose of directly supporting re- 
ligion, but for the purpose of promoting and ^ preserv- 
ing good order among the entire community. This opin- 
ion was received with the utmost satisfaction by all intelli- 
gent and thoughtful persons, not only in California, l)ut 
throughout the country. At a later day its reasonings and 
its conclusions were adopted by the Court in a subsequent 
case, and the former decision was overruled.! 

Ler/al-tender act and taxes. — Soon after the passage of the 
Legal-tender act by Congress the question arose, of vital 
importance not only to California, but to ever}' other State, 
whether it applied to the payment of State taxes. It was 
held, in an opinion delivered l)y Judge Field, that the 

* Ex-parte Newman, 9 Cal., 502. — See printed vol., pp. 34-^^7. 
t Ex-parfc Andrews, 18 Cal., G80. 



40 

clause making treasury notes " a legal tender in payment 
of all debts, private and public," is contined in its opera- 
tions to obligations for the payment of money founded 
upon contract, and does not extend to taxes imposed un- 
der State authority; tliat a debt is a sum of money due by 
contract, express or implied, wliile a tax is a charge upon 
persons or property to raise money for public purposes, 
and operates in inmtam* The doctrine of this case was 
approved and followed by the Supreme Court of the 
United States.f Besides, the power o.f taxation is one of 
tlie highest functions of government, given to the indi- 
vidual States as well as to the nation, and so far as it is 
conferred upon, and may be exercised by the States, it is 
beyond the scope of congressional interference. State 
taxes are, therefore, payable in such kind of money as 
State laws shall prescribe, entirely nnatJected by the so- 
called " Legal-tender act." 

2. Mitters of a local interest. — The long series of decis- 
ions pronounced by Judge Field, dealing with mattei's of 
local interest to the Pacific Slope, discuss legal questions 
of the greatest magnitude and dithculty, atiecting property 
of enormous value, and determine, in fact, the whole 
course of private industries in the Mining States. The vast 
amount of research, laboi', learning, and intellectual force 
which these cases I'equired, cannot be appreciated by those 
whose only knowledge of them has been obtained from 
the volumes of Reports. Nothing at all analogous to them 
can be found in the modern judicial records of the English 
Bench. The judges of a new, half-settled American State 
were called upon to decide controversies far surpassing in 
the number and difficulty of the legal questions presented, 
and in the pecuniary interests at stake, anything which 
the present generation has brought before the House of 

* Perry vs. Washburn, 20 Cal., 318. 

t Laue County vs. Oregon, 7 WaU., 71, per C. J. Chase, a most able ex- 
position of the fundamental theory of our national government, and of 
the relations between the nation and the States. — See printed vol., p. 38. 



n 

•Lords, or tlio Privv Ooiuu-il, or other liigliest trihiinal of tlio 
British Empire; :iiul many of these decisions theiuselvos 
wouM i-etieet credit upon the ahiest of tlie English judie- 
iaiT. A detailed account of thest' eontrov'ersies might, in 
the hands of a graphic writer, ])c. made a nari-ative of in- 
tense and highly dramatic inti'rest to the general as well 
as to the professional reader. Such a mirrative, however, 
I caniu)t attempt. 1 can only enumerate the most import- 
ant questions which were tinally settled l)y these succes- 
sive judicial contests, and must refer to the pages of the 
printed volume for all the particulars. It is enough to say 
that these questions, in their universality, their variety, 
and their far-reaching consequences, lay at the very bot- 
tom of the social organization in California; upon them 
depended the titles to a large portions of the lands; they 
determined the success or the destruction of the great 
mining and agricultural industries of the whole southern 
coast west of the Rocky Mountains. The following is a bare 
statement of the most important wdiich were settled in 
greatei' part, even if not entirely, tlirough Judge Field's 
influence, and the adoption of his views by the Court. 

1. T/i.e Mexican governtneutul land-r/rards, embracing as col- 
lateral or subordinate incidents, the validity of their titles, 
and the system of legal rules by which they were to be 
established and governed; the extent, location, and l»ound- 
aries of the tracts included in the grants; the I'ights of 
the original grantees or of their assigns; and the conflict- 
ing rights and claims of the actual occupants and of adjii- 
cent settlers.* 

2. The or-cupation of the United St'dcs public Ifinds b/j set- 
tlers, before any measures had been adopted by the gov- 
ernment regulating their sale or use, that is, before the 
lands were surveyed and brought under the general public 

* Ferris vs. Coover, 10 Cal., 589; Coriiwiill V8. Culver, l(i Cal,4'2i»: 
Mahoney vs. Van Winkle, 21 Cal., 576-580. 

See the printed volume, pp. 20-24; and also Judge Field's "Personal 
Reminiscences of Early Days in California,'' pp. 138-143. 
I) 



42 

land system. This embraced, as incidental and auxiliary 
questions, the mode of treating such settlers, whether they 
were to be regarded and dealt with as unlawful intruders 
and trespassers ; the nature and extent of the usufructuary 
interest which each individual settler obtained in the 
parcel of land appropriated by him from his actual occu- 
pation, and his rights thereto as against all the world ex- 
cept the United States; in considering which questions the 
Court boldly disregarded the settled common -law rules 
concerning the necessity of a legal title in order to maintain 
ejectment. It also embraced a consideration of the rights 
of such settlers to mines on the lands occupied by them, 
and to appropriate water for irrigation and other purposes, 
and a great number of similar ancillary questions growing 
out of the altogether anomalous condition of the country, 
and the absence of legislation by Congress.* 

3. The ownership of the gold and silver in the soil, and the 
claim of the State to such ownership. In one or two early 
cases the Supreme Court had, without fully examining the 
reasons originally given for the doctrine or their applica- 
bility to our own country, adopted the ancient common- 
law dogma that the ownership of gold and silver con- 
tained in all lands within the State was vested in the State 
itself by virtue of its sovereignty. t The miners soon took 
advantage of this doctrine. Claiming to act under an 
authority derived from a State statute, and even without 
any such legislative permission, the}^ asserted the right to 
carry on their mining, not only in the public lands of the 
United States, but also in all land which had been granted, 
either by Mexico, or by the United States, or by the State, 
to private owners. They even asserted this right with 
respect to private lands which were actually occupied 
by their owners, and were used by them for other pur- 

* Coryell vs. Cain, 16 Cal., 572. 

t Hicks vs. Bell, 3 Cal., 227 ; Stoakes vs. Barrett, 5 Cal., 37.— See the 
printed volume, pp. 26, 27 ; and " Early Days in California," pp. 145-149. 



48 

|)()s('s tlian luiniiiii'. tor iiii'i'icultiifc, I'or graziiiii;, or ioi" 
r(_'si(U'iuH'. This rl;iiin was not an empty theory; it was 
cai'ricd into actual o|)eratioii. Tiu' miiKU-s entered upon 
private lands at will, used and occupied for iarins, cattle 
ranches, vineyards, or any olhei' similar pui'pose, in search 
for gold and silver, heaving up the soil, and sometimes 
destroying improvements antl doing great damage.* In 
this condition of things the Supi'eme Court nobly [)er- 
formed its duty. AVith the cei'tainty of encountering the 
hostility of large masses of prejudiced and lawdess men, 
Judge Field, as the organ of the Court, swept away the 
old common-law dogma; demonstrated the absurdity of 
the I'easoning upon wdiich it had originally been rested, 
and show^ed its inapplicability to the institutions and social 
condition of this country. His opinions, which are most 
al)le specimens of judicial reasoning, established the doc- 
trine that the gold and silver in the soil belong to the 
owner of it, and that the precious metals are entirely 
unconnected witli wdiateyer of sovereignt}^ inheres in the 
State. As the United States originally owned the soil, 
so it owned all the gold and silver contained wdthin the 
same; and this owniership passed to and vested in the 
grantees of the United States and their assigns. No more 
important decisions were made by- the Court while Judge 
Field was a member of it, and although they aroused 
temporaiy opposition, they have long Ix'en acknowdedged 
as wise and just as well as legally correct.! 

4. United States patent-'^ for lands, involving their peculiar 
force and etiect, the rights which they confer, the legal 
estate of the patentees; the ecpiitable estates wdiich may 

* This was specially so on the Mariposa and Fernandez grants. Hen- 
shaw vs. Clark, 14 Cal., 4(5:5 ; Biddle-Boggs vs. ISIeroed Mining Co., Id.. 
379. 

t Biddle-Boggs vs. Merced Mining Co., 14 Cal., 37;>-r!80; Fremont vs. 
Fowler, and Moore vs. Smaw, 17 Cal., 200. 

See the printed vol., pp. 26-29; " Early Days in California," pp. 14.^- 
153. 



44 

exist either under or in opposition to them, and a nnndier 
of other incidents.* 

5. The Piiehlo of San Francisco, and the proprietai-y 
rights derived therefrom. The decision of the Supreme 
Court that a " pueblo " existed at the site of San Fran- 
cisco, and that the city had succeeded to its proprietary 
rights under the Mexican laws, settled a dispute which 
had existed since the very beginning of the American 
settlement. The opinion in the first and leading case was 
written by Judge Baldwin and concurred in by Judge 
Field. t The latter's most important work in connection 
with this matter was done Ijy him as United States judge, 
presiding in the IT. S. Circuit Court. He there rendered 
a final decree establishing the proprietar}^ rights of San 
Francisco, which was afterwards confirmed by Congress, 
and now constitutes the foundation of all the titles within 
a large part of the city limits. J 

6. The communit)/ property/ of husband and wife, its na- 
ture, and the rules regulating its management, disposition, 
and dissolution, and determining the rights in it of the two 
spouses. 1 1 

7. Other subjects.— A number of other subjects of great 
importance, which were considered by the State Court, are 
mentioned in the printed volume; such as the claim of the 
State to five hundred thousand acres of land granted by 
the 8th section of the act of Congress of September 4th, 
1841, for purposes of internal improvement, and its right 
to dispose of the lands in advance of the public surveys ; 

* Moore vs. Wilkinson, 13 Cal., 478 ; Biddle-Boggs vs. Merced Mining 
Co., 14 Cal., 361-366 ; Stark vs. Barrett, 15 Cal., 362 ; Mott vs. Smith, 16 
Cal., 534 ; Teschemacker vs. Thompson, 18 Cal., 20 ; Leese vs. Clark, 18 
Cal., 565 ; 20 Cal., 411 ; Estrada vs. Murphy, 18 Cal., 268 ; Beard vs. Fed- 
ery, 3 Wall., 478.— See printed vol., p. 30. 

t Hart vs. Burnett, 15 Cal., 530. 

X The Pueblo Case, 4 Sawyer, 553. See " Early Days in California," 
pp. 153-163 ; pp. 241-243. 

II Myer vs. Kinzer, 12 Cal., 247 ; Smith vs. Smith, 12 Cal., 216-225 ; Pix- 
ley vs. Huggins, 15 Cal., 128 ; Van Maren vs, Joliuson, Id,, 308 : Scott vs. 
Ward, 13 Id., 458, 



45 

contracts of the State for the support and labor of its con- 
victs; the power of the Courts to compel by mandamus 
officers of the State to do their duty; conflicting rights of 
miners to the use of the water of streams in the moun- 
tains for the purpose of mining; the construction of wills; 
the distinction between mortgages and deeds of trust, and 
many other matters.* 

III. — His irork as </ Mciiiber of the United States Saprevie 
Coart. 
' It is upon liis character as a constitutional lawyer, as an 
authoritative interpreter of the Xational Constitution, that 
Judge Field's reputation as a judge of the United States 
Supreme Court must ulthnatcly and mainly rest. Legal 
questions of a countless number and variety, affecting 
private rights, and involving every department of juris- 
prudence — common law and equity, admiralty, maritime 
and prize law, patent law and cop}- right, the civil law as 
embodied in Louisiana and Mexican codes, statutes 6f 
Congress and of State Legislatures, everything except 
pure matters of probate — may come before that Court for 
adjudication. Probably no other single tribunal in the 
world is called upon to exercise a jurisdiction extending 
over so many different subjects, and demanding from its 
judges such a variety of legal knowledge. But the high- 
est power of the Court, that incident of transcendent im- 
portance which elevates it far above an}^ other judicial 
tribunal, is its authority as a final arbiter in all controvei'- 
sies depending upon a construction of the United States 
Constitution, in the exercise of which exalted function, 
as the final interpreter of the organic law, it determines 

* Butte Canal and Ditch Co. vs. Yauglian, 11 Cal., 153 ; Baker vs. Baker, 
13 Id., 87 ; Pierce vs. Robinson, 13 Id., 116 ; Blanding vs. Burr, 13 Id., 
343 ; Koch vs. Briggs, 14 Id., 256 ; Noe vs. Card, 14 Id., 577 ; Norris vs. 
Harris, 15 Id., 226 ; State of California vs. McCanley, 15 Id., 429 ; Holli- 
day vs. Frisbie, 15 Id., 630; McCauley vs. Brooks, 16 Id., 12; Koppikus 
vs. State Capital Commissioners, 16 Id., 249 ; Brumagim vs. Tillinghast, 
16 Id., 266 ; Doll vs. Meador, 16 Id., 295 ; Halleck vs. Mixer, 16 Id., 575. 



tlie bounds beyond wliicb neithei- the national nor the 
tState governments niaj riglitfully pass. It is the nniqne 
feature of our civil poHty, the element which distinguishes 
our political institutions from all others, the crowning con- 
ception of our system, the veiy keystone of the vast arch, 
upon which depend the safety and permanence of the 
whole fabric, that the extent and limits of the legislative 
and executive powers, under the Constitution, both of the 
nation and of the individual States, are judicially deter- 
mined by a body completely independent of all other de- 
partments, conservative in its essential nature and ten- 
dencies, and inferior to no authority except the deliberate 
organic will of the people expressed through the elective 
franchise. This special function of tlie Supreme Court 
was from the outset denied by a small school of impracti- 
cable theorists, and during the whole period of our history 
it has been the object of bitter hostility from those by 
whom the very conception of one united people is re- 
jected. It has, however, been uniformly exercised from 
the beginning of Washington's administration down to 
the present day; it has grown in the public favor, and it 
has finally been accepted by the overwhelming weight of 
popular approval as one of the fundamental axioms of 
our governmental system. With the vast mjgority of in- 
telligent men in all parties, the well-considered decisions 
of the Supreme Court are regarded as authoritatively set- 
tling disputed questions of power and right, for the gov- 
ernment as well as for individuals, and alike for the gov- 
ernment of the nation and of the separate States. As a 
student of political science, and especially of our own 
public law, I am profoundly convinced that this peculiar 
function of the National Judiciary, as the final interpreter 
of the organic law, is the very corner-stone upon which 
rest all our institutions, and the permanence of ouv pres- 
ent organization into nation and States, each with its 
own" powers, and as a consequence the perpetuation of our 
civil and political lilierties. 



47 

No more need be said to show that the character of a 
United States judge as a constitutional lawyer, is a matter 
of the highest importance. It is chiefly in this character that 
I shall examine the work of Judge Field. In such exam- 
ination 1 shall follow the method already adoi)ted in the 
preceding subdivision. There will be no unnecessary rep- 
etition of matter contained in the accompanying selection 
from his decisions and opinions. As a prelude or intro- 
duction to that selection, I shall portray his general char- 
acter as a constitutional lawyer; state the fundamental 
principles of constitutional interpretation which he adopted 
and promulgated, describe the most important of his judi- 
cial work by which those principles have been carried into 
operation, and mention some of the leading cases in which 
the results of that w^ork have been embodied. For fuller 
details and particulars, reference must be had to the books 
of reports and to the volume of selections annexed. 

Within the past year or two, and especially since certain 
recent decisions from which he dissented, the charge has 
been repeatedly made by some pohtical newspapers, whose 
extreme partisanship is only equalled by their absolute 
ignorance of constitutional law, that Judge Field is an 
advocate of the so-called "State-sovereignty" theory, 
and that he denies the validity of, and is endeavoring to 
judicially break down, the XlVth Amendment of the 
Constitution. Nothing can be more absurdly false. The 
^'State-sovereignty" theory, as I understand it, denies in toto 
that the National Judiciary can authoritatively pass upon 
the validity of State legislation; and asserts in the most 
positive manner that the power to determine finally the 
validity of State laws and of State governmental acts, be- 
longs exclusively to each State — i. c, to the judiciary 
thereof— by itself; and insists that the construction of all 
provisions of the United States Constitution imposing re- 
strictions upon the State governments, is a judicial func- 
tion irrevocably possessed by each State, with which the 
United States or its judiciary cannot interfere. In at least 



48 

one-half the cases involving questions of constitutional 
law decided by Judge Field, he has reviewed State legis- 
lati(Mi, inquired into its validity, and pronounced it void, 
asserting in the strongest manner the revisory power thns 
exercised by the Supreme Court. Ev^en as a single judge, 
sitting in the Circuit Court, he has annulled the statutes of 
a State. In the face of these facts he is foolishly charged 
with being a judicial supporter of the " State-sovereignty " 
dogma, as above defined, by editors wdio are ignorant of 
the very meaning of the term. 

While in the Supreme Court of California he had occa- 
sion, in a very important and carefully-considered opinion, 
to exphiin the true meaning of the word " sovereignty," 
as it is applied to individual States under our political sys- 
tem, and to show that it is only in a partial and qualified 
sense that the word can with propriety be used to desig- 
nate any attribute belonging to a State, In the great case 
of Fremont vs. Fowler,* he thus describes the sovereignty 
of a State: 

" Sovereignty is a tei'm used to express the supreme po- 
litical authority of an independent -State or nation. What- 
ever rights are essential to the existence of this authority 
are rights of sovereignty. Thus the right to declare war, 
to- make treaties of peace, to levy taxes, to take private 
property for public uses — termed the right of eminent do- 
main — are all rights of sovereignty, for they are rights es- 
sential to the existence of supreme political authority. In 
this country, this authoriti/ is vested in the people, and is exer- 
cised through the joint action of their fedei-al and State 
governments. To the federal government is delegated the 
exercise of certain rights and powers of sovereignty, and 
with respect to sovereignty, rights and powers are synon- 
ymous terms; and the exercise of all other rights of sov- 
ereignty, except as expressly prohibited, is reserved to the 
people of the respective States, or vested ])y them in their 
local governments. When we say, therefore, that a State 
of the Union is sovereign, we only mean that she possesses 
supreme political authority, except as to those matters over 

*17Cal.. 200. 



49 

which siu'h nnthority is delegated to the fodei-nl govern- 
iiieiit, ov prohihited to tlie States; in other words, that she 
possesses all the rio'hts and powers essential to the exist- 
ence of an individual political organization, except as they 
are withdrawn by the provisions of the Constitution of the 
United States. To the existence of this political autlu^rity 
of the State — this (/v/illjied sorerdr/nf)/, or any yinrt of it - 
tl e ownership of the minerals of gold and silver found 
witliin her limits is in no way essential." 

This extract shows in the clearest possible light that 
Judge Field repudiates the notion of an absolute sover- 
eignty, such as is the essential attribute of a completely 
independent political society, being vested in each indi- 
vidual State; which is the very fundamental conception oi' 
the " State-sovei-eignty " theory; on the contrary, he as- 
serts the true principle, — the very central thought of all 
correct interpretation,— that the absolute sovereignty is 
rested in the people ; that a part of its sovereign powers is 
exercised by the federal government and a part by each 
State government; and that the sovereignty thus exercised 
by a State is partial and qualified. To this conception of 
the relations between the divided sovereignty, wielded in 
part by the central govertnnent and in part l)y the States, 
he has adhered during his whole judicial career. 

Passing now to an affirmative view of his work as a con- 
stitutional interpreter, I tliink that in no other department 
of the law has the element of consistency, described in a 
preceding paragraph, been displayed in a more remark- 
able manner than in this. He has adopted clear and defi- 
nite principles of constitutional law, applicable both to the 
nation and to the State, to tlie powers conferred upon the 
government of each, and to the limitation imposed upon 
those powers, and to this system, whether it be correct or 
not, he has nnquestionably adhered with absolute con- 
sistency through the entire course of his numerous decis- 
ions. No external influence has been able to sway him 
from those settled convictions. When the Court has con- 
formed to and annoimced those principles, he has agreed 



50 

with it, and has often been its mouth-piece in making 
the decision. Whenever the majority of the Court, as has 
sometimes been the case, has temporarily departed from 
those principles on either side, whether in the direction of 
sustaining State legislation or of sustaining legislation 
of Congress, he has dissented. It should be especially re- 
marked, for the benefit of those who charge him witli 
being a supporter of the " State-sovereignty theory," so 
called, that some of his ablest, best considered, and most 
forcible dissents have been from decisions of the Court 
w^hich upheld State statutes transgressing, in his opinion, 
the restrictions either of the original Constitution or of the 
XlVth Amendment. 

The fundamental principles which Judge Field has thus 
adopted, — the system of constitutional interpretation which 
as a whole he has consistently maintained, — are, in mj' 
opinion, correct. They are substantially the same broad, 
comprehensive, liberal doctrines which were promulgated, 
and enforced with a cogency of reasoning absolutely crush- 
ing, by the great Chief Justice Marshall, and supported by 
such judges as Washington, Story, Wayne, and Catron. 
Whether he has correctly applied them in every individ- 
ual case coming before him as a member of the Court, or 
whether he may not sometimes have erred in such appli- 
cation, are questions concerning which there may, per- 
haps, be a difference of opinion even among those who 
entirely agree with him in his general system. 

These principles which thus underlie all his work in 
interpreting the Constitution, and to which he has so con- 
sistently adhered, whether acting with the Court or dis- 
senting from it, are, I think, the following: (1) The polit- 
ical sovereignty and absolute supremacy of the United 
States and of its government, with respect to all matters 
within the scope of its legitimate functions, embracing all 
the legislative, executive, and judicial powers conferred 
upon it by the Constitution, and especially the power con- 
ferred upon its judiciary, of authoritatively and finally in- 



terpretiiig the organic law, and determining the nature 
and extent of all its grants and limitations of power, (2) 
Corresponding qnalitled political sovereignty exercised by 
the individual States, and t/icir exclusive pou'ers, free from 
federal interference with respect to all matters coming 
within the scope of their legitimate functions, which in- 
clude all powers not conferred upon the general govern- 
ment, or not reserved by the people themselves, incapable, 
therefore, of being exercised by either government, or not 
expressl}' prohibited to the States. (3) The recognition, 
preservation, and inaintenance, tirm and inviolate, of all 
the limitations and restrictions, whether expressed or 
necessarily implied, imposed upon the governments, both 
of the United States and of the individual States, by the 
original Constitution or by the amendments thereto, (4) 
The upholding and enforcement, as a matter of special 
moment, of all tliose particular restrictions upon the gov- 
ernmental action, both of the United States and of the sev- 
eral States, contained in the original Constitution and in 
the amendments, which are intended directly to protect 
the private rights of life, liberty, and property, and, in fact, 
that entire body of private rights which constitute " civil 
hberty." 

These principles may be still further generahzed, and 
are summed up in two ideas: Firsi, the preservation from 
every interference or invasion by each other, of all the 
powers and functions allotted to the national government 
and the State governments; and s^co??d, the perfect security 
and protection of private rights from all encroachments, 
either by the United States or by the individual States, 
These two ideas he has steadily kept in view and has made 
the basi.s of his decisions, lie has demonstrated that a 
constant and firm maintenance of the powers justly be- 
longing to the federal government, is not incompatible 
with an equally tii-m upholding of the powers entrusted 
to the States, with an undeviating adherence to the sacred 
doctrine of local self-government, and with zealous pro- 



tection of private riglits, because all, in fact, rest upon 
the same foundation. 

My purpose, in tlie remaining portion of this sketch, is 
to show that Judge Field has uniformly and consistently 
asserted and applied these fundamental principles through 
his whole course of decisions upon the United States Bench. 
If I shall refer with more detail to decisions in which he 
lias asserted the power and supremacy of the United States 
Government, it is because the other side of his system, and 
the cases in which he sustains the State authoi'ity and the 
civil rights of pei'sons, are fully set forth in the accompany- 
ing volume. 

Judge Field's opinions concerning the essential and liis- 
torical nationality of the United States; the nature of the 
Union ; its relations with the States; the indestructible chai-- 
acter,both of the Union and the States, as an organization 
which not only exists under the Constitution, but existed 
prior to it, may be learned from the cases of Lane Co. vs. 
Oregon and Texas vs. White, in 7 Wallace. In these cases 
the Court was called upon to examine more profoundly and 
to declare more correctl}", than had ever before been done 
by Marshall, Story, Taney, and the whole line of former 
judges, the true nature of the relation.s of the United States 
and of the States Avith each other, and of the peculiar or- 
ganization resulting from their union. The Court for the 
first time found a solid basis, historical as well as logical, on 
which to rest the inherent existence and supremacy of the 
United States. Placing the Union upon a sure foundation, 
it also defined the status of the States, and asserted their 
necessary existence and peculiar rights in a manner no less 
clear and certain. The Court by these judgments estab- 
lished the United States and the States upon exactly the 
same footing; whatever weakens the one weakens the other; 
whoever denies the historic origin of the one, denies the 
same of the other. As we have in this theory the greatest 
security for the nation, we have also the greatest security 
for the several States. The opinions in these two cases 



Avofc delivered by Mi", .lustice Cliase, and were coiicun-cd 
ill l)_v .Iii(I;>-e Field and otliei's wlio cM)iii[)os(.'d tlu' majority 
iviiderini;- tiie decision. It is undoubtedly true, as a general 
rule, that eoncurring judges are not necessarily required 
to agree witli all of llie views expressed in tlie prevailing 
opinion of tlie Court. Wliile tliey must agree with its eou- 
clusions, there may be modes of reasoning, lV)rms of argu- 
ment, personal notions of the one writing tlie opinion, to 
wliich the concurring judges do not wholly assent. There 
are, however, special reasons why this ordinary rule can- 
not be applied to these two cases. They were test cases, 
most carefully considered by the Court, and intended by 
the majority to put the questions involved, forever at rest. 
This was especially true of Texas vs. AVhite. Again, the 
conclusions reached, and concurred in by the majority, are 
such as necessarily required an assent to the whole course 
of reasoning contained in the opinions. It would be im- 
possible to reject any substantial position taken l)y the 
Chief Justice, or any particular argument in his chain of 
reasoning, without at the same time rejecting the conclu- 
sions which he finally reaches, and wdiich form the basis 
of the judgment. To this I may add the testimony of 
Chief Justice Chase himself. In a letter written to me 
shortly after the decision of Texas vs. White was an- 
nounced, he says, concerning the opinion in that case : 

"■ That opinion was very much discussed, especially by 
the judges who concurred in it, and may, I thiidv, be re- 
garded as a tolerably correct expression of the views of 
the Court as to the nature of the National Union, of its re- 
lations to the States, and of the principles of re-organiza- 
tion of States disorganized by rebelhon, and of the restor- 
ation of national relations interrupted by civil war." 

It niay, therefore, be considered as certain that these 
two cases express the dehberate convictions and opinions 
held by Judge Field; and in no subsequent case has he 
expressed any sentiment, or adopted any course of reason- 
ing, or announced any doctrine, in opposition to these 
most important and protound judgments. 



54 

The same high view eoiiceniiiiii' tlie t^upi'onuicy of the 
United States Goveninient, within the field of its dele- 
gated powers, and concerning tlie hmitations placed upon 
State action, is exhibited in his interpretation of the XlVth 
Amendment — that crowning and consummate provision of 
the organic hiw. So far from tlie absurd charge that he 
is hostile to this amendment being true, it was Judge Field 
himself who first, in a dissenting opinion, gave to the 
amendment that broad, liberal, and universal construction 
which renders it, as was intended, the most perfect safe- 
guard against the encroachments of State governmental 
action upon the private civil rights of all persons. The 
first cases involving the amendment which came before 
the Court were the Slaughter-House Cases. — (16 Wall., 
36.) The majority of the Court, in an opinion by Mr. Jus- 
tire Miller,* jjut upon the amendment a most narrow in- 
terpretation, which would utterly destroy its value as a 
protection of private civil rights. The}^ adopted as their 
fundamental proposition the strange notion that the amend- 
ment was confined in its operations to negroes. They held 
that tl)e Xlllth, XlVth, and XVth Amendments wei-e 
steps in the accomplishment of one final object — the abo- 
lition of slavery and the perfect . freedom and protection 
of the negro race. They declared that, although ex- 
pressed in general terms, the primary design and main 
purport of the XlVth Amendment was to confirm the 
status of negroes as citizens, and to prevent the encroach- 
ments of State laws which would discrimituxte against 
them. This was all the mearung which the majority could 
find in provisions designed to protect all persons against 

* This opinion is the more strange and inconsistent since Judge Miller 
has always advocated views which tend to break down almost all limi- 
tations upon the general government, and to make the legislative powers 
of Congress almost universal. While maintaining a general theory con- 
cerning the nationality of the U. S., which I believe to be on the whole 
correct, he is inclined to ignore or weaken the restrictions which the 
Constitution has everywhere placed upon the exercise of full national 
powers by Congress. 



unjvist jictioii of the local government. Mr. Justice Mil- 
ler went so far, while commenting upon tlie last and most 
sweeping provision— " nor shall any State deny to anv 
person within its jarisdiction the e(iual protection of tlie 
laws " — as to say of it: " We douht very rnnch whethei- 
any action of a State, not directed hy way of disci'imina- 
tion against the negroes as a class, or on account of their 
race, will ever he held to come within the province of this 
provision." Four judges dissented from this narrow con- 
struction, in a most powerful opinion written hy Judge 
Field. He asserted in the strongest terms the universality 
of the amendment, its application to all classes of persons. 
He denied that its operation was confined to the negroes. 
It afforded the same protection to aU persons against local 
oppressive laws; it secured to all persons the equal pro- 
tection of the laws. In a word, the XlVth Amendment 
was enacted to supply a great want, which had existed 
since the foundation of the government. "While the 
States wei-e from the outset forbidden to pass ex post facto 
laws, or bills of attainder, or laws impairing the obligation 
of contracts, the}^ might in many other ways invade the 
rights of citizens, and the national courts could grant no 
relief. 

This beneficial amendment throws the protection of the 
national courts around ihe lives, liberty, and proj)erty of 
all persons, and enables tlie supreme tribunal to annul all 
oppressive laws which the partisanship of local courts 
might perhaps sustain. To limit the meaning of the 
amendment, to confine its effect to one portion of the in- 
liabitants, and that a comparatively small part, was to de- 
feat its most important design, and to destro}^ its highest 
usefulness. The construction then put upon it by the ma- 
jority simply emasculated the amendment, Tlie broad, 
lil)eral, and national interpretation of Judge Field and 
the minority, is clearly correct; and to it he has steadily 
adhered in every subsequent case coming before the 
Sup)reme Court, or before himself in the Circuit Court, 
down to and including the somewhat famous " Chinese 



Queue Case," in which he directly held that certain 
local legislation was annulled by the amendment. Judge 
Field's position in this matter should not be misunder- 
stood. In the recent cases which have attracted so 
much attention, involving the validity of certain legis- 
lation of Congress purporting to be based upon the 
XIV th Amendment, he does not deny the validity nor 
the efficacy of that amendment; on the contrary, he re- 
iterates all the views which he had before expressed. He 
dissents from the Court solely with respect to the legisla- 
tion which Congress may properly enact for the purpose of 
carrying it into eflect. He declares that no affirmative leg- 
islation is either necessary or appropriate. Like the clauses 
forbidding States to pass ex post f ado laws, or bills of at- 
tainder, or laws impairing the obligation of contracts, the 
prohil>itions of the amendment execute themselves. They 
are addressed to the States in their corporate capacity, and 
not to individuals, and they annul all State legislation 
which conflicts with their provisions. He regards the 
sacred principles of local self-government as lying at the 
very foundation of our institutions. The theory of the Con- 
stitution is, that all affirmative control over and legisla- 
tion concerning private rights and relations, are coniided 
exclusively to the individual States, and are not delegated 
to Congress. The XlVth Amendment has enabled the 
national courts to exercise a judicial scrutiny over this 
State legislation, to determine its validity, and to pronounce 
it null and void when discriminating or oppressive or vio- 
lative of private civil rights; but the amendment cannot 
be regarded as revolutionizing the entire theory of our 
political organization, and as transferring Xa Congress the 
power of legislating with respect to private and personal 
rights. This is, in outline, the position maintained by Judge 
Field. It is entirely consistent with his doctrines concerning 
the supremacy of the General Government; it is, in fact, a 
part of one rounded, complete, and consistent system. 

The supremacy of the General Government within tlie 
scope of those powers delegated to it by the (\)nstitution, 



1 

is also niaiiitniiuMl in the most positive maiiiicr l>y n lono- 
scries of decisions, in nianv of which lie (lelix'ci'cd the 
opinion of the Court, and in the ollu-rs conciiri'ed, dealing 
with foi-eign cinnnierce, inter-state commerce, the ohjects 
of State taxation, and other analogous suhjects of eon- 
gi-essional legislation. In numerous decisions covering 
every aspeet of tlie question, and in language as pointed 
and emphatic as any that was ever used by Marshall or 
Story, he has affirmed the supreme and exclusive power 
of Congress over all branches and kinds of foreign or in- 
ter-state commerce which are national in their character, 
or requiring a uniform rule, the invalidity of State statutes 
which either directly or indirectly interfere with the free- 
dom of inter-state traffic, or with the equality of civil 
rights belonging to citizens of other States. T)\(\ my time 
and space permit, it would be both interesting and instruc- 
tive to quote some passages from the opinions of this class; 
but I must be content with collecting and arranging the 
most important cases in the foot-note.* Here, also, it should 
l)e noticed that Judge Field has been uniformly consistent, 
even when the Court has departed from its estabhshed 
principles, as it did in some of the so-called Granger Cases 
involving the validity of State statutes which interfered 
with and prescribed regulations atfecting tlie inter-state 
transportation of goods and |>ersons, and the inter-state 
traffic in goods. t 

*See the following cases in which he delivered the opinion of the 
Court : Welton vs. Missouri, 1 Otto, 275 ; Sherlock vs. Ailing, 3 Otto, 99 ; 
The Daniel Ball, 10 Wall., 357, 365; State Tax on Foreign Bondholders, 
15 Wall., 300 ; County of Mobile vs. Kimball, 12 Otto. 691 ; Tiernau vs. 
Rinker, Ibid., 123 ; In re Ah Fong, 3 Sawyer, 144, 151 ; and also the follow- 
ing, among numerous others, in which he concurred : Case of State Freight 
Tax, 15 AVall., 232; Chy Lung vs. Freeman, 2 Otto, 275; Eailroad vs. 
Husen, 5 Otto, 465 ; Henderson vs. Mayor of X. Y., 2 Otto, 259. 

fMunn vs. Illinois, 4 Otto, 113, 1.35; Chicago, &c., K. E. vs. Iowa, 4 
Otto, 155, 163 ; Peik vs. Chicago, &c., R. R., 4 Otto, 164, 177. Judge Field's 
dissent in this group of cases is a noble protest against State legislation 
invading the rights of private property, and as a course of reasoning is. 
as it seems to me, unanswerable. 
K 



58 

One of the most distinguishing features of Judge Field's 
character as an interpreter of the Constitution, and of his 
work as a member of the iSTational Judiciary, appears in 
the steady, uniform, and energetic manner in which he 
lias enforced all the safeguards which the Constitution and 
its amendments have thrown around the pei'sonal rights 
of life, liberty, and property, by inhibiting all legislative 
or executive action, either of the federal or of the State 
governments, which would encroach upon those rights. 
He has clearly perceived that the primary object of all 
constitutional government is the protection of those sacred 
rights and immunities which constitute " civil liberty," 
and that a government which can only be maintained by 
ignoring or violating those rights is not worth preserving 
and maintaining. On the other hand, he has perceived, 
with an equally clear vision, that our own national organi- 
zation, our political institutions, the integrity of our Union, 
and the autonomy of the States, could be upheld, pre- 
served, and maintained by means of a strict and faithful 
adherence to the restrictions and limitations embodied in 
the Bill of Rights; that the preservation of the Union, 
the suppression of insurrection, and the ultimate triumph 
of the principles of freedom and equality, did not require 
any abandonment of, or interference with, local self-gov- 
ernment, or the civil liberties of the private citizen. This 
element of his character and work is fully displayed in the 
ac(;ompanying volume and needs no further description. 

At the outbreak of tlie civil war a species of political 
insanity seems to have seized upon large numbers of other- 
wise thoughtful and intelligent men. The power of the 
President to disregard all the legal securities of life, lib- 
erty, and property, to enforce martial law against civilians, 
to establish military courts in States removed from the 
scene of war, and subject persons there to military trials 
and punishments, was asserted in the most positive man- 
ner ; any denial or even doubt of the authority was 
treated as disloyalty. Tt is simply amazing to look back 



59 

to that period and to recall the opinions which were tlieu 
pnhhcly maintained.* The whole subject, in fact, pre- 
sented two aspects, namely: the eifect of suspending; the 
writ of habeas corpus, and the power to enforce martial 
law. It was asserted that the authority given to suspend 
the writ of habeas corpus during insurrection or invasion 
included the authority to disregard all the safeguards 
which the Bill of Rights has tlirown around life, liberty, 
and property, and drew after it, as a necessary conse- 
quence, the power to make military arrests of citizens, 
and subject them to military trials and punishments. Even 
at the veiy outset a warning voice was raised against these 
monstrous conclusions. The venerable Horace Binney, 
the acknowledged leader of the American Bar, the asso- 
ciate and friend of all the greatest statesmen and judges 
of our earlier period, who, as a scholar in the Philadelphia 
High School, walked in pubhc procession at the adoption 
of the United States Constitution, and then first felt, as he 
Vv^rote to me, that he belonged to a nation, to something 
he could call his country, — Horace Binney wrote and pub- 
lished three essays in which he examined the subject of 
suspending the w-rit of habeas corpus in a most exhaustive 
manner, and showed, by a course of reasoning which 
amounts to absolute demonstration, that suspending the 
writ does not in the least aflect the authority over arrests ; 
that it does not enable Congress to allow, nor the Ex- 
ecutive to make, arrests without legal cause or in an arbi- 
trary manner; that it does not legalize seizures otherwise 
arbitrary, nor give any greater authority than that of de- 
taining suspected persons in custody whom the govern- 
ment would else be obliged to bring to a speedy trial or to 
release on bail. 

*A large volume was written and published called "The War Powers 
under the Constitution," a book maintaining sentiments suited, perhaps, 
to the autocratic despotism of Russia in its struggle with the Nihilists, 
but which are simply the negation of every fundamental principle of 
civil liberty and of private rights contained in our own political institu- 
tions. 



60 

Tliese conclusions thus reached by Horace Binney were 
adopted by the Supreme Court in the Milhgan Case (4 
Wall., 2, 115), in the decision of which Judge Field 
concurred. The claim to exercise martial law against 
civilians was still more terrible. A most elaborate and 
exhaustive examination of tlie power to enforce martial 
law under or Ijy virtue of the common law was made 
a few years ago by Lord Chief Justice Cockburn, one 
of the ablest chiefs who ever sat on the English Bench, 
and whose recent death is a great loss to the English ad- 
ministration of justice,* After a review of the prece- 
dents, ancient and modern, set forth in the wonderfully 
clear manner for which he was so pre-eminently dis- 
tinguished, the Chief Justice reached the conclusion that 
under the common law there is no authority to enforce 
the martial law in any part of the British Empire where 
the common law prevails; in other words, the common 
law knows no such attribute of executive power. This 
conclusion the Supreme Court also adopted in the Milh- 
gan case. There can be no martial law in the United 
States except as an instrument and means of cai'rying 
on actual warfare, of conducting actual hostilities in re- 
gions occupied by the opposing armies. This doctrine 
received the hearty approval of Judge Field, and has 
l)een on every occasion maintained by him. See es- 
pecially his dissenting opinion in Beckvvith vs. Bean, (8 
Otto, 285-306. ) 

I must not pursue this analysis into any further detail. 
I have shown that his system of constitutional construc- 
tion is consistent and complete; that it recognizes and 
maintains alike the lawful supremacy and exclusive au- 
thority of the General Government within the scope of 
powers delegated to it, and the just rights of individual 

* Charge of the Lord Chief Justice of England in the ease of tlie Queen 
vs. Nelson and Brand, London, 1867, a case growing out of the negro 
insurrection, or rather tumult, in Jamaica, and the conduct of the Gov- 
ernor. 



61 

States; tlifit it preserves unimpaired all the restrictions 
and limitations imposed upon the governmental action 
both of the States and of the nation; that it jealously 
guards the private and civil rights and immunities of per- 
sons; and tiiat it respects and keeps in force the sacred 
principles (-•f local self-government, and of civil and con- 
stitutional liberty, which underlie all our political institu- 
tions. From his opiinons alone, a complete and consistent 
system of constitutional law might be composed, in whicli 
the American citizen would find a perfect text-book of 
political science, an exhaustive treatise upon the institu- 
tions of his country. 

In conclusion, the proposition is, in my opinion, estab- 
lished by the foregoing sketch, that by his creative force 
as a state legislator, as a state judge, and, above all, as a 
meml)er of the Supreme ISTational Tribunal, Judge Fiekl 
has, as much as any jurist of the present generation, im- 
pressed himself upon the jurisprudence of his country. 



Note. 

The articles in this volume are a compilation made by 
political and personal friends of Judge Field. The greater 
part of them were prepared in 1880. Those added since 
have been furnished principally by members of the Bar of 
California. The whole are now published at the request 
of gentlemen of that State, where it is believed they will 
be favorably received from the number of important pub- 
lic questions considered in them, and the ability with 
which the questions are treated. 

No reference is made to the action of the associates of 
Judge Field on the Bench or in the Electoral Commission 
further than is necessary to illustrate and explain his con- 
duct and positions. It is only with his career that the 
volume is concerned, and its limits would not allow any 
extended statement of their views and acts. 

Chauncey F. Black. 
Samuel B. Smith. 

New Yokk, July, 1881. 



STEPHEN J. FIELD 



LEGISLATOR, STATE JUDGE, AND JUDGE OF THE 
SUPREME COURT OF THE UNFTED STATES. 



JUDGE FIELD AS A LEGISLATOR. 



TIk' Legi-ilation. secured by him for tlir Protection of 3Iitier.'< in fJieir 
Mining Claims. 



From tlir Sun Jose D.VII.Y Hkrai.D [(Mifoniia \ of Xnrrmlirr 18,1879. 



"The long judicial service of our distinguished fellow- 
citizen, embracing nearly six years in the Suj^reme Court 
of the State, and more than sixteen in the Supreme Court 
of the United States, has been marked by most al)le opin- 
ions on many great leading questions. This fact has very 
naturally connected his name in the public mind mainly 
with those questions, and few are aware of other, and even 
more important services, rendered our State l)y him, as a 
legislator, in tlie early days of the State's history. He was 
a member of the second legislature which was chosen in 
the Fall of 1850, and represented the then county of Yuba, 
which at that time included also what are now Sierra and 
Xevada counties. 

" The first legislature had eiiacted a general system of 
laws, sm-li as are indispensable to the government .of any 
community. It had done uuthing, however, toward the pro- 
tection or regulation of that great interest whicli had gath- 
ered together from every State in tlie Union, and from 
every nation of the world, the restless and sometimes tur- 
bulent ])<)[)u]atio]i of the CaHfornia of tliirty years ago. The 



gold seekers were left to jostle each otliei-, and to settle their 
disputes as best they might. The ownership of the mines 
was held by some to be in the United States, and by others 
to be in the State, while all were alike extremely jealous 
of any assertion of power over them by the government 
of either. It was evident that the miners could not long 
be left to fight among themselves over questions of priority 
or extent of claims, while it was equally evident that legis- 
lation on the sul)ject must be in accord with generally ac- 
cepted opinion or it would be a dead letter. The situation 
was a grave one, and it demanded statesmanlike treatment. 
To do nothing was to leave the peace of the State at the 
mercy of those whose fierce thirst for gold might outrun 
their respect for fair dealing. Honest misunderstandings 
as to facts were oftenest settled by immediate appeal to 
brute force. The world has probably never seen a sim- 
ilar spectacle — that of extensive gold-fields suddenly peo- 
pled by masses of men from all States and countries, re- 
strained by no law, and not agreed as to whence the laws 
ought to emanate by which they would consent to be bound. 
As in all other emergencies, the one man was there to 
bring forward the saving measure. Stephen J. Field solved 
the ditficult problem. He saw that the rude society around 
him would shatter to fragments any system in which its 
own strong will and native common sense were not taken 
into account. The miners had, in each camp, held meetings, 
and enacted rules and regulations by which they agreed to 
be governed in that place. These had reference to the ex- 
tent of each claim in the given locahty , the acts necessary to 
constitute location or appropriation of the same, and the 
amount of work which should entitle the claimant to con- 
tinued possession. The State could not safely attempt to 
substitute for these various rules any of a more general 
and uniform character. This fact was the basis of the 
measure brought forward by Judge Field in the Legislature 
of 1851, and by him urged to final success. He did not 
leave the miners to be a law unto themselves, but held 



tlu'in to tlio laws tlicy had inade ior tlioiiisclvcs. His 
plan was siiii[>l(' and at tlu" same tinic tliorouii-Ji and sound. 
It was that the rules made hy the miiu'i-s sliould he eii- 
foreed l)y the Statt'. What tliey had (h'cjared to l»e fair [.lay 
should hetlie law of the land, and should LCoveni the eourts 
in tlieir deeisions in niininii' dis[»utes. Here is the lan- 
guaii'e : 

'■ In actions respecting ' Mining CUaims ' proof shall be 
admitted of the customs, usages, or regulations established 
and in force at the bar, or diggings, embracing such claims, 
and such customs, usages, or regulations, when not in con- 
Hi et with the constitution and laws of this State, shall 
govern the decision of the action." 

" The principle contained in the fifty-two words above 
C|Uoted was adopted in other mining regions of the coun- 
try, and finally by the Congress of the United States. The 
author of it has seen its wisdom vindicated l)y more than 
twenty-eight years of experience, and for it the people of 
the State and of Kevada should ever hold him in grateful 
remembrance. When they think of him only as a judge 
deciding upon the administration of laws framed by others, 
let them be reminded that in a single sentence he laid the 
foundation of our mining system so firmly that it has not 
been, and cannot be, disturbed." 



At the time the above legislation was had actions for 
mining claims, the mines being in the lands of the 
United States, were usually brought upon an alleged forci- 
ble or unlawful detainer. The rule adopted by the enact- 
ment in question, originally applicable only in actions be- 
fore local magistrates, was soon extended to actions for 
mining claims in all courts, and, as stated above, now pre- 
vails in all the mining regions of the country. 

Many years afterwards Mr. Field, in giving the opinion 
of the Supreme Court of the United States in an import- 



ant case before it, spoke of the usages and regulations of 
miners, to which this legislation gave the force of law, as 
follows : 

"The discovery of gold in California was followed, as is well known, 
by an immense immigration into the State, which increased its popula- 
tion within three or I'onr years from a few thousand to several hundred 
thousand. The lands in which the precious metals were found belonged 
to tile United States, and were unsurveyed, and not open, by law, to 
occnpatiou and settlement. Little was known of them fiirtlier than that 
they were situated in the Sierra Nevada Mountains. Into these moun- 
tains the emigrants in vast numbers jienetrated, occupying the ravines, 
gulches, and canons, and probing the earth in all directions for the 
precious metals. Wherever they went they carried with them that love 
of order and system and of fair dealing which are the prominent charac- 
teristics of our people. In every district which they occupied they 
framed certain rules for their government, by which the extent of ground 
they coukl severally hold for mining was designated, their possessory 
right to such ground secured and enforced, and contests between them 
either avoided or determined. These rules bore a marked similarity, 
varying in the several districts only according to the extent and char- 
acter of the mines, distinct provisions being made for different kinds of 
mining, such as placer mining, (quartz mining, and mining in drifts or 
tunnels. They all recognized discovery followed by appropriation as the 
foundation of the possessor's title, and development by working as the 
condition of its retention. And they were so framed as to secure to all 
comers, within practicable limits, absolute equality of right and privi- 
lege in working the mines. Nothing but such equality would have been 
tolerated by the miners, who were emphatically the law-makers, as re- 
spects mining, upon the public lands in the State. The tirst appropriator 
was everywhere held to have, within certain well-detined limits, a better 
riglit than others to the claims taken up ; and in all controversies, except 
as against the government, he was regarded as the original owner, from 
whom title was to be traced. But the mines coirld not be worked with- 
out water. Without water the gold would remain forever buried in the 
earth or rock. To carry water to mining localities, when they were not 
on the banks of a stream or lake, became, therefore, an important and 
necessary business in carrying on raining. Here, also, the first appro- 
priator of water to be conveyed to such localities for mining or other 
beneficial purposes, Avas recognized as having, to the extent of actual 
use, the better right. The doctrines of the common law respecting the 
rights of riparian owners were not considered as applicable, or only in a 
very limited degree, to the condition of miners in the mountains. The 
waters of rivers and lakes were consequently carried great distances in 
ditches and flumes, constructed with vast labor and enormous expendi- 
tures of money, along the sides of mountains and through canons and 



raviiK-s to supplv ((.mnuuiitics cii-iMjicd in milling-, as well as I'or a-rriful- 
turisls and ordinary consunii.tion. Xunurous n <;iilations were adopted, 
or assunud to exist iVoui llirir ol.vious Justness, lor tlu^ seenrity of these 
ditclics and liuines, and the protect ion of li-lits to water, not only l)c- 
Iwccn difr.Tent approjniatois, but l)ct\vren tiicni and the liohiers of 
mining ehiiins. These ri'iiuhilions and eustoius wvw appeah'd to in eon- 
ti-oversies in tlie State courts, and received their sanction ; and properties 
to the vahie of many millions rested ni»(m them. For eighteen years, 
from 1S48 to 1866, the regulations ami customs of miners, as enforced 
and moulded by the courts, and sanctioned by the legislation of the 
State, constituted the law governing property in mines and in water on 
the pnl)lic mineral lands. Until 1866 no legislation was had looking to 
a sale of the mineral lands. The policy of the country had previously 
been, as shown by the legislation of Congress, to exempt such lands from 
sale. In that year tlie act, the ninth section of which we have quoted, 
was passed.* In the tirst section it declared that the mineral lands of 
the United States were free and open to exploration and occupation by 
citizens of the United States, and those who had declared their intention 
to become citizens, subject to such regulations as might be prescribed by 
law and the local customs or rules of miners in the several mining dis- 
tricts, so far as the same were not in conflict with the laws of the United 
States. In other sections it provided for acquiring the title of the United 
States to claims in veins or lodes of quartz bearing gold, silver, cinnabar, 
or copper, the possessory right to which had been previously acquired 
under the customs and rules of miners. In no provision of the act was 
any intention manifested to interfere with the possessory rights pre- 
viously acquired, or which might be afterwards acquired ; the intention 
expressed was to secure them by a patent from the government. The 
Senator of Nevada,t the author of the act, in advocating its passage in 
the Senate, spoke in high praise of the regulations and customs of miners, 
and portrayed in glowing language the wonderful results that had fol- 
lowed tlie system of free mining which had prevailed with the tacit 
consent of the government. The Legislature of California, he said, had 
wisely declared that the rules and regulations of miners should be re- 
ceived in evidence in all controversies respecting mining claims, and 
when not in conflict with the constitution or laws of the State or of the 
United States, should govern their determination ; and a series of wise 
judicial decisions had moulded these regulations and customs into 'a 
comprehensive system of common law, embracing not only mining law, 
properly speaking, but also regulating the use of water for mining pur- 
poses.' The miner's law, he added, was a part of the miner's nature. He 
had made it, and he trusted it and obeyed it. He had given the honest 

* The act of July 26, 1866, " granting the right of way to ditch and 
canal owners over the public lands, and for other purposes." — (14 U. ,S. 
Statutes, 251.) 

t Hon. Wm. M. Stewart. 



toil of his life to discover wealth, which, when found, was protected by- 
no higher law than that enacted by himself under the implied sanction 
of a just and generous government. And the act proposed continued 
the system of free mining, holding the mineral lands open to exjiloration 
and occupation subject to legislation by Congress and to local rules. It 
merely recognized the obligation of the government to respect private 
rights which had grown up under its tacit consent and aijproval. It pro- 
posed no new system, but sanctioned, regulated, and confirmed a system 
already established, to which the people were attached." — ( Jennison vs. 
Kirk, 98 U. S. Eep., 457.) 



JUDGE FIELD AS A LEGLSLATOR. 



The Legislation secured by him for the Exeiufption from Forced Sale 
for Debts of the Tools ami other Personal Property of the Debtor. 



From the Sail Jnsp DAILY Herald of November 21, 1879. 



" 'L-cifit Wednesday we gave a portion of Judge Field's 
record as a legislator in this State, showing that his ser- 
vices have heen of great value and that he is one of the 
most thorough statesmen claimed by this coast. We re- 
ferred particularly to the mining law, and we now call 
attention to another most beneficial law of which Judge 
Field was the author. We refer to the law exempting 
from sale for debt (other than the purchase money, or to 
satisfy a mortgage thereon) certain property. The law 
reads as follows : 

" The following property shall be exempt from execu- 
tion, except as herein otherwise specially provided : 

" 1. Chairs, tables, desks, and books, to the value of one 
hundred dollars, belonging to the judgment debtor ; 

" 2. Necessary household, table, and kitchen furniture, 
belonging to the judgment debtor, including stove, stove- 



9 

pipe, and stove furniture, \vearin<>: apparel, beds, beddino:, 
and bedsteads, and })rovisi()ns actually provided for indi- 
vidual or family use suifieient for one month ; 

•• -■'). The farming utensils, or implements of husbandry, 
o\' the judgment debtor ; also two oxen, or two horses, or 
two mules, and their harness, and one cart or wagon, and 
food for such oxen, horses, or nudes for one month ; 

'• 4, The tools and implements of a mechanic necessary 
to carry on his trade, the instruments and chests of a sur- 
geon, physician, surveyor, and dentist necessary to the ex- 
ercise of their professions, witli their profes.sional librar}^, 
and the law libraries of an attorney or counsellor ; 

'' •'). The tent and i'urniture, including a talde, camp 
stools, bed and bedding, of a miner ; also his i-ocker, 
sliovels, spades, wheelbarrows, pumps, and other instru- 
ments used in mining, with provisions necessary for his 
support for one month ; 

" 6. Two oxen, or two horses, or two mules, and their 
harness, and one cart or ^vagon, by the use of which a 
cartman, teamster, or other laborer habitually earns his 
living ; and food for such oxen, horses, or mules for one 
month ; and a horse, harness, and vehicle used by a phy- 
sician or surgeon in making his professional visits ; 

" 7. All arms and accoutrements required by law to be 
kept by any person. But no article mentioned in this 
section shall be exempt from an execution issued on a 
judgment recovered for its price, or upon a mortgage 
there(»n/' * 

" This was far in advance of any similar provision in 
other States, and was a bold and novel proposition. Thou- 
sands have enjoyed its benefits without being aware that 
its author was Stephen J. Field, The wisdom of it is 
manifest when we consider that it merely preserves to the 
unfortunate debtor the instrumentalities for future etibrt. 
A rapacious creditor might feel entitled to "the uttermost 
fartliing'' in the possession of the num indebted to him, 

* These provisions are contained in section 219 of the act of 1851, 
regulating proceedings in civil cases, which is one of the many original 
sections in that act drawn by .Judge Field. Until this legislation there 
was no exemption at all of personal property in California ; and no exemp- 
tion equally extensive is found in the previous legislation of any State 
of the Union. 



10 

But this law interposes and says to the debtor : " You shall 
have the right to reserve a hundred dollars' worth of 
property, your necessary houseliold furniture, wearhig a[)- 
parel, and a month's provisions ; and then besides this, if 
you are a fanner, you shall he allowed to retain all your 
farniing implements, and als(j a wagon and a pair of ani- 
mals, with one month's food for them. This will enahk; 
you to go to work and repair your fortunes. The law will 
not see you disabled." To tlie mechanic and miner this 
humane law says : " J3e of good cheer. You shall keep 
the tools with which you ply your calling. These shall 
l)e regarded as a part of }'our own physical system ; as 
well might your hands be cut oh" as your tools taken from 
them." To the workingman using a cart and horse, as so 
many laborers do, this law, which has stood for twenty- 
eight years on our statute b()ok, says : "Yon nmst pay 
your debts, but need not sell the good horse and cart by 
which you are aided to feed your children. Kay,, you may 
keep a wagon and two horses, if you are so fortunate as 
to have them. These make you independent, and the 
sheritf shall not take them." Others were also protected. 
The instruments of the surgeon and surveyor, the library 
of the physician and the lawyer, an<l the horse and buggy 
of the i»hysician, were all declared exempt from forced 
sale. This law has never been complained of or tampered 
with, and remains a monument to the wisdom, humanity, 
and thoughtfulness of its author, -Judge Field, who, in 
framing it, made application, for the benefit of the debtor, 
of the truth uttered by that harshest of creditors — Shy- 
lock — when he said : 

You t;ik(.' inv life 



Wheu you do take the nieaii.s 
Whereby I live. 

These measures — the mining law, and the law exempt- 
ing certain property from forced sale under execution — 
are but a snnxll portion of the valuable legislative work of 
Judge Field, but we bring them to public attention at this 



11 

time Jis funiisliiiis: liigb evidence of the pnictical wisdom 
i^*^ one wliose name \vc read ot'tcnest of late years in con- 
nection with ."puru'ial (l(H'isi(»ns, Imt wliose friends could, if 
thev ehoso, claim lor him a itlace amoni>; statesmen aslii_a;h 
as that he ()ecu[)ies anioni;' jurists. His conservatisn\ has 
never made him the enemy of wholesome ehani!,-es, and 
his proii'ressiven ess has never ma;]e him the supporter of 
any of the isms of the times. He has hi'cn as great a 
student of men and of attairs as of hooks,'' 



JUDGE FIELD AS A LEGISLATOR. 

General Legislation secured by him. 



From the San Jose Daily Herald of Deconber 26, 1879, 

" We have already referred to legislation concerning 
mining customs and regulations, and exemptions of cer- 
tain pei-sona.l property from forced sale, of which Judge 
Field was the author. We desire to make some further 
reference to his brief but most lionoral)le, and we might 
truly say brilliant legislative career, 

" His service was only for a single session — -that of 1851 
— and yet whilst there he left his mark permanently upon 
the laws of the State, He was appointed on the Judiciary 
Conmdttee ; and as a member of that Committee he pre- 
pared and reported a l)ill concerning the Courts of Justice 
and Judicial Officers of the State, wdiich was passed. The 
immense labor, difficulty, and responsibility attending the 
preparation of this bill will be seen, when it is stated that 



12 

by it the whole Judiciary System of the State was reorgan- 
ized, and the jurisdiction, powers, and duties of the several 
courts, and of all Judicial officers, were designated and de- 
lined. And it may be here added that the act of 1853 
with the same title— which was the original act carefully 
revised, and introduced into the Legislature by Mr. Sam- 
uel B. Smith of Sutter County — was also prepared by him. 

" He also prepared and introduced bills to regulate pro- 
ceedings in civil and criminal cases. These bills were taken 
from the proposed codes of New York as reported by 
the Commissioners of that State ; but the great labor in- 
volved nevertheless in their preparation may be estimated 
from the fact, that in order to adapt them to the peculiar 
condition of the new State and the requirements of its 
constitution, as well as to his own views of what would 
constitute the best practice, he redrafted over three hun- 
dred sections, and added over one hundred new ones. 
Among the new sections are those to which we have al- 
ready referred relating to actions respecting mining claims 
and the admission in evidence of the customs and regula- 
tions of miners, and respecting exemptions from forced 
sale of personal property. These bills became laws and 
with some amendments — found necessary during a period 
of nearly twenty -two years, and particularly from the con- 
stitutional amendments of 1862 — remained on the statute 
book until the adoption of the recent codes, in which they 
are substantially embodied. 

" He also drew bills creating the counties of Nevada and 
Klamath and gave those counties their names. Many 
counties also sought legislation correcting or changing 
their boundary lines, and several bills on the subject being 
referred to him he reported a general l)ill, dividing the 
State into counties and establishing the Seats of Justice 
therein, which was passed. Judge Field drew the char- 
ters of the cities of Marysville, Nevada, and Monterey — 
the latter being reported as a substitute for the bill intro- 
duced by the member of Monterey County. The prin- 



13 

cipal provisions of these ehartcrs have been adopted in 
subsequent acts ci'cating municipal incorporations. 

" lie also (h'al'ted llie :u-i coiiccniing divorces Avhich was 
reported iVoui the Judic-iarv Coumiittee as a substitute for 
a bill on the same subji'ctintro(Uice(l by Mr. desse D. Can-. 

'' Et luis ahvays been a source of great satislaction to bini 
tbat he gave most earnest support to the Homestead Ex- 
emption Bill That bill was introduced by Mr. Gavin I). 
Hall, then of El Dorado, now of San Francisco, and was 
assailed violently as tending to obstruct the collection of 
debts. An effort to reduce the amount of the Homestead 
Exemption from $5,000 to |8,000 was stoutly and success- 
fully resisted by Judge Field, Judge McCorkle, and the 
author of the bill. 

" The session of 1851 was the most important in the his- 
tory of the State. It was the tirst one held after the ad- 
mission of California into the Union ; and some of the 
best tind)ers of the new governmental structure are of the 
handiwork of Judge Field. His labors there, as in every 
other station to which he has been called, exhibit great 
devotion to the public service, untiring industry, and a 
high sense of the responsibility of a public officer. Many 
bad bills were defeated through his influence and many de- 
fective ones amended by his suggestions. He was seldom 
absent from his seat ; he carefully watched all measures ; 
and there were few debates in which he did not participate. 
Such is the universal testimony of all the survivors of the 
legislative body of 1851, and its truth is estabhshed by the 
dournals of the Assembly and the papers of the time. 

" We are specially indebted for the materials of this ar- 
ticle to information derived from Judge McCorkle, Hon. 
Samuel A. Merritt, and Hon. Jesse I). Carr, who were 
members of tlie Legislature with Judge Field." 



In addition to the above, Judge Field Avas the author of 
the act concerning attorneys and counsellors-at-law, in 



u 

which he hieorporatiMl provisions reiidcrini:' it iinjiossihlc 
tor any judge to disbar an attorney in an arbitrary man- 
ner without notice of the charges against him, and giving 
him an opportunity to he heard upon them ; of tlie act 
concerning county recorders, in wliich the present system 
of keeping the records of conveyances was adopted ; and of 
the act concerning county sherifiis, in which their duties 
in the execution of process and in keeping prisoners were 
declared and defined. 



STEPHEN J. FIELD 



JUDGE OF THE SUPREME COURT OF CALIFORNIA. 



In 1S,')7 \h\ Field was fleeted Judii'e of the Supreme 
(\)urt of C^uliforuia for six years, eoiiiineiK'ing January 1st, 
1858, There were two eandidates besides himself before 
the people for the position, and 93,000 votes were polled. 
Tie received a majority of 80,000 over each of his op- 
ponents, and 17,000 over them both together.* 

In September, 1857, the Chief Justice of tlie Court, 
Hugh L. Murray, died, and one of the associate judges 
was appointed to till the vacancy. This left the balance 
of the associate judge's term of service, which extended 
to the following January, unoccupied, and Mr. Field was 
appointed by the governor of the State — a political oppo- 
nent — to fill it. He accepted the appointment, and took his 
seat on the bench October l:Uh, 1857. He held the office 
of associate judge until the resignation of Chief Justice 
Terry in Septendier, 1859, when he l)ecanie Chief Justice. 

* The exact vote Avns as follows : 

For S.J. Field 55,216 

For Nathaniel Bennett 1*^,944 

For J. P. Ralston 19,068 

Total vote 93,228 

Majority of Field over Bennett 36,272 

Majority of Field over Ealston 36,148 

Majority of Field over both 17.204 



16 

In 1808 Mr. Field wns appointed b}' President Lincoln 
an Associate Justice of the Supreme Court of the United 
States. The appointn:ient was made upon the unanimous 
recommendation of the congressional delegation of the 
Pacific C'Oast, tlien consisting of four Senators and four 
Members of the House, of whom five were Democrats 
and three Republicans ; all of them were Union men. His 
commission was dated Marcli 10th, 1863, but as he desired, 
prior to leaving the State bench, to dispose of the cases 
which had been argued before him, he did not take the 
oath of office until the 20th of Ma}^ following. He sent in 
his resignation to the governor to take elieet on tliat day. 

Judge Joseph Gr. Baldwin, who had l)een his associate 
on the bench for three years, hearing of the resignation, 
gave expression to his estimate of Mr. Field's judicial 
career in the following communication to the Sacramento 
Union, which appeared in that paper May 6th, 1863. Judge 
Baldwin was himself distinguished alike for his legal 
and literary attainments, and was warndy attaclied to his 
friend. 



JUDGE FIELD. 

" The resignation by Judge Field of the oifice of Chief 
Justice of the Supreme Court of California, to take efi'ect 
on the 20th instant, has been announced. By this event 
the State has been deprived of the ablest jurist who ever 
presided over her courts. Judge Field came to California 
from Xew York in 1849, and settled in Marysville. He 
immediately commenced the practice of law, and rose at 
once to a high position at the local bar, and upon the or- 
ganization of the Supreme Court soon commanded a place 
in the first class of the counsel practicing in t])at forum. 
For many years, and until his promotion to the bench, liis 
practice was as extensive, and probably as renumerative, 
as that of any lawyer in the State. He served one or two 
sessions in the JjCgislature, and the State is indebted to 



17 

liini lor very niaiiy oi" the laws whicli constitute the body 
of her leg-islatioii.* In 1857 he was nominated for Judg-e 
of the Sui)renie Court for a full term, and in October of 
the same year was appointed by Govenor Johnson to fill 
the unexpired term of Justice Heydenfeldt, resigned. He 
immediately entered upon the office, and has continued 
ever since to discharge its duties. Recently, as the reader 
knows, he was appointed by the unanimous request of our 
delegation in Congress, to a seat upon the Bench of the 
Supreme Court of the United States, and was confirmed, 
without opposition, by the Senate. 

"Like most men who have risen to distinction' in the 
United States, Judge Field commenced his career without 
the advantages of wealth, aiid he prosecuted it without the 
factitious aids of family influence or patronage. lie had 
the advantage, however— which served him Ijetter than 
wealth or family influence — of an accomplished education, 
and careful study and mental discipHne. He brought to 
the practice of his profession a mind stored with profes- 
sional learning, and embeUished wdth rare scholarly attain- 
ments. He was distinguished at the bar for his fidelity to 
his clients, for untiring industry, great care and accuracy 
in the preparation of his cases, uncommon legal acumen, 
and extraordinary solidity of judgment. As an adviser, 
no man had more the confidence of his clients,for he trus- 
ted nothing to chance or accident when certainty could be 
attained, and felt his way cautiously to his conclusions, 
wdiich, once reached, rested upon sure foundations, and to 
which he clung with remarkable pertinacity. Judges soon 
learned to repose confidence in his opinions, and he always 
gave them the strongest proofs of the weight justly due to 
his conclusions. 

'' When he came to the bench, from various unavoidable 
causes the calendar was crowded with cases involving im- 
inense interests, the most important questions, and various 
and pecular litigation. Cahfornia was then, as now, in the 

* He was in the Legislature only one session. 



18 

development of her multiform physical resources. The 
judges were as much pioneers of law as the people of settle- 
ment. To be sure something had been done, but much 
had yet to be accomplished ; and something, too, had to be 
undone of that which had been done in the feverish and an- 
omalous period that had preceded. It is safe to say that, even 
in the experience of new countries hastily settled by hetero- 
geneous crowds of strangers from all countries, no such ex- 
ample of legal or judicial difhculties was ever before pre- 
sented as has been illustrated in the history of California. 
There was no general or common source of jurisprudence. 
Law was to l)e administered almost without a standard. 
There was the civil law, as adulterated or moditied by Mex- 
ican provincialisms, usages, and habitudes, for a great part 
of the litigation ; and tliere was the common law for another 
part, but lohit tJi((t iraft was to be decided from the con- 
flicting decisions of any number of courts in America and 
England, and the various and diverse considerations of 
policy arising from local and other facts. And then, con- 
tracts made elsewhere, and some of them in semi-civilized 
countries, had to be interpreted here. Besides all which 
may be added that large and important interests peculiar 
to this State existed — mines, ditches, etc. — for which the 
courts were compelled to frame the law, and make a system 
out of what was little better than chaos. 

" When, in addition, it is considered that an unprece- 
dented number of contracts, and an amount of business 
without parallel, had been made and done in hot haste, 
with the utmost carelessness ; that legislation was accom- 
plished in the same way, and presented the crudest and 
most incongruous materials for construction ; that the 
whole scheme and organization of the government, and 
the relation of the departments to each other, had to l:>e 
adjusted by judicial construction — it may well be con- 
ceived what task even the ablest jurist would take upon 
himself when he assumed this office. It is no small com- 
pliment to say that Judge Field entei'ed upon the duties 



11) 

of this i;Te;it trust wilh his usiuil /ciil and ciicru-v, and that 
he kMives the olHce not only with ^-I'catly inciH'ascd repu- 
tation, l)nt tliat lie has raised the character of the jurispru- 
dence of the State, lie has more than any otlu'r man n-iven 
tone, consistency, and system to our Judicatui'e, and laid 
hroad and deep the foandation ol'our civil and criminal law. 
The land titles of the State — the most important and per- 
manent of the interests of a great commonwealth — have 
received from his hand their permanent protection, and 
this alone should entitle him to the lasting gratitude of 
tlie har and the people. 

" His opinions, whether, for tlieir learning, logic, or dic- 
tion, will compare favorahly, in the judgment of some of 
our hest lawyers, with those of any judge upon the Su- 
preme Bench of the Union. It is true what he has accom- 
])lished has been done with lal)or ; ])ut this is so much 
more to his praise, for such work was not to be hastily done, 
and it was proper that the time spent in perfecting the 
work should bear some little proportion to the time it 
should last. We know it has been said of Judge Field 
that he is too much of a' case lawyer,' and not suthciently 
Ijroad and comprehensive in liis views. This criticism is 
not just. It is true he is reverent of authority, and likes 
to be sustained by precedent ; lait an examination of his 
opinions will show that, so far from being a timid copyist, 
or the passive slave of authority, his rulings rest upon 
clearly defined principles and strong common sense. 

" He retires from office without a stain opon his ermine. 
Millions might have been amassed by venality. He retires 
as poor as when he entered — owing nothing and owning 
little, except the title to the respect of good men, which ma- 
lignant mendacity can not wrest fi'om a public officer who 
has deserved, by a long and useful career, the grateful ap- 
preciation of his fellow-citizens. We think that we may 
safely predict that, in his new place, Justice Field will fulfill 
the sanguine expectations of his friends." 

San Francisco, May 1, 18(18. '^- ^^- ^- 



20 

It will be observed that in his conimunicatioTi Judge 
Baldwin })laces great stress upon the action of Judge Field 
in the settlement of land titles. Their unsettled condition 
when he went on the bench was the occasion of much 
litigation as well as animosity between persons who other- 
wise would have been on amicable terms. This condi- 
tion arose principally from three causes: 1st, the immense 
extent and indefinite boundaries of grants from the former 
Mexican government ; 2d, the occupation by settlers of 
lands of the United States in advance of measures by the 
government for their sale; and 3d, the claim of California 
to own the gold and silver found in all lands in the State. 

The following is a brief statement as to these causes of 
disturbance and their disposition : 

1st. As to the Mexican f/nnits : 

" Wlien Cahfornia was acquired, the population was 
small and widely scattered. To encourage colonization, 
grants of land in large quantities, varying from one to 
eleven leagues, had been made to settlers by the Mexican 
government. Only small tracts were subjected to cultiva- 
tion. The greater part of the land was used for grazing 
cattle, which were kept in immense herds. The grants 
were sometimes of tracts with defined boundaries, and 
sometimes of places by name, but more frequently of 
specified quantities lying within boundaries embracing a 
greater amount. By the Mexican law, it was incumbent 
upon the magistrates of the vicinage to put the grantees 
in possession of the land granted* to them ; and for that 
purpose to measure off and segregate the quantity desig- 
nated. Owing to the sparseness of the population there 
was little danger of disputes as to boundaries, and this seg- 
regation in the majority of cases had been neglected be- 
fore our acquisition of the country. From the size of the 
grants and the want of definite boundaries, arose nearly 
all the difficulties and complaints of the early settlers. 
Upon the discovery of gold, immigrants from all parts of 



21 

the \V(irl(l i-usIumI into tlie country, increasing the popula- 
tion in one or two years from a few thousand to several 
liundivd thousand. A lai'i^-e iiuiid)er crossed the plains 
froni thi' Western States, and many of them sought for 
farming lands upon whirh to settle. To them a grant of 
land leagues in extent seemed a monstrous wi'ong to which 
they could not he reconciled. The vagui-ness, also, in 
manv instances, of the houndaries of the land claimed 
ga\e force and a[)i)arent reason to their ohjet-tions. They 
accordingly settled upon what they found unenclosed or 
uncultivated, without much regard to the claims of the 
Mexican grantees. If the land upon which they thus set- 
tled was within the tracts foi-merly occupied hy the grant- 
ees with their herds, they denied the validity of grants so 
large in extent. Tf the houndaries designated enclosed a 
greater amount than that specitied in the grants, they un- 
dertook to locate the supposed surplus. Thus, if a grant 
were of three leagues within boundaries endjracing four, 
the immigrant would undertake to appropriate to himself 
a portion of what he deemed the surplus ; forgetting that 
other immigrants miglit do the same thing, each claiming 
that wdiat he had taken was a portion of such surplus, 
until the grantee was deprived of his entire property. 

" AVhen the Supreuie Court of California was brought to 
consider the questions to wdiich this condition of things 
gave rise, it assumed at the outset that the obligations of 
the treaty with Mexico were to be respected and enforced. 
This treaty had stipulated for the protection of all rights 
of property of the citizens of the ceded country; and 
that stipulation endiraced inchoate and equitable rights, 
as well as those wdiich w^ere perfect. It was not for that 
Court to question the wisdom or policy of Mexico in mak- 
ing grants of such large portions of lier domain, or of 
the Uiiited States in stipulating for their protection. As 
Judge Grier said in his opinion in the case of The United 
States vs. Sutherland, in the llHh of Howard, the rhetoric 
whicli denounced the grants as enormous monopolies and 



priiicedouis luiii-lit liave a jii.st influence when urged to 
those who had a right to give or refuse; but as the United 
States had bound themselves bj a treaty to acknowledge 
and protect all hmia-Jide titles granted by the previous gov- 
ernment, the court had no discretion to enlarge or contract 
such grants to suit its own sense of propriety or to defeat 
just claims, however extensive, by stringent technical 
rules of construction to whicli tliey were not originally 
subjected." * 

■'■" In the Fossatt case this obligation of oui" government to protect the 
rights of Mexican grantees in California is stated in brilliant and power- 
ful language by Judge Black. Referring to the land claimed by one 
Justo Larios, a Mexican grantee, he said : " The land we are claiming 
never belonged to this government. It was private property under a 
grant made long before our war with Mexico. When the treaty of Gua- 
dalupe Hidalgo came to be ratified — at the very moment when Mexico 
was feeling the sorest pressure that could be applied to her by the force 
of our armies and the diplomacy of our statesmen — she utterly refused to 
cede her public property in California unless upon the express condition 
that all private titles should be faithfully protected. We made the prom- 
ise. The gentleman sits on this bench (Judge Cliftbrd) who was then 
our Minister there. With his own right hand he pledged the sacred 
honor of this nation that the United States would stand over the grant- 
ees of Mexico and keep them safe in the enjoyment of their property. 
The pledge was not only that the government itself would abstain from 
all disturbance of them, but that every blow aimed at their rights, come 
from what quarter it might, should be caught upon the broad shield of 
our blessed Constitution and our equal laws. It was by this assurance 
thus solemnly given that we won the reluctant consent of Mexico to part 
with California. It gave us a domain of more than imperial grandeur. 
Besides the vast extent of that country, it has natural advantages such as 
no other can boast. Its valleys teem with unbounded fertility, and its 
mountains are filled with inexhaustible treasures of mineral wealth. The 
navigable rivers run hundreds of miles into the interior, and the coast is 
indented with the most capacious harbors in the world. The climate 
is more healthful than any other on the globe : men can labor longer 
with less thtigue. The vegetation is more vigorous and the products 
more abundant ; the face of the earth is more varied, and the sky bends 

over it with a lovelier blue. That was what we gained by the 

promise to protect men in the situation of Justo Larios, their children, 
their alienees, and others claiming through them. It is impossible that 
in this nation i\\ey will ever be plundered in the face of such a pledge."— 
(2 Wallace, 703.) 



2^1 

'• Actiiiii- oil tlic [•i-iiiciplc (li:it fidi'Iity to a natioirs 
pIcMlu-o is a sacred diilv, and tliat Justice is tlic lii^licst in- 
terest of tiie country, J udge 1^'ii'ld eiuleaxored, \\lieiu'\el' 
the occasion [.i-esented itself, and his associates co-operated 
with him, to protect the Mexican <;-i'anlees. Their li'rants 
contained a stipulation lor the possession of tlie lands 
ii-ranted, inasmuch as they were suhjeet to the condi- 
tions of cultivation and oeeupaiicy, and a faihire to com- 
ply witli the conditions was considered hy the trihiinals of 
the United States as a most material circumstance in tlie 
determination of tlie riii'ht of the grantees to a (u)nfiriua- 
tion of tlieii- claims. He held, therefore, with the concur- 
rence of his associates, that the grantees, wliether they 
were to he considered as liaving a legal or an equitahle 
right to the lands, were entitled to their possession until 
the action of the government ujxni their claims, and, there- 
fore, that the}' c()uld recover in ejectment."' If the grant 
w^as a mere float, or of a quantity to l»e selected within 
vague undefinahle boundaries like mountains, as in the 
case of the Mariposa grant, no line on such mountains, from 
their base to their summit, being designated, he held that 
the grantee was to be confined in his recovery to the tract 
actually used and occupied hy him, until the government 
intervened and determined that the quantity granted to 
him should l)e elsewdiere located. But if the grant was 
not a mere float, but was of land within clearly defined 
boundaries, wdiich embraced a greater quantity tlian that 
specified in it, with a provision that the surplus should be 
measured of by the government, he held that until such 
measurement the grantee was a tenant in common with 
the government and could hold the wdiole as against 
mere intruders and trespassers. As he said in one of 
his opinions, speaking for the court, until such measure- 
ment no individual could complain, much less could he 
be permitted to determine in advance, that any particu- 
lar locality would tall w-ithin the supposed surplus, and 
thereby justify its forcible seizure and detention by him- 



24 

self. " If one person could in this way appropriate a par- 
ticular parcel to himself, all persons could do so ; and 
thus the grantee, who is the donee of the government, 
would l»e stripped of its bounty for the benetit of those 
who were not in its contemplation and were never in- 
tended to be the recipients of its favors." * 

These views have since met with general assent in 
California and have been approved by the Supreme Court 
of the United States.! But at that time they gave otience 
to a large class, and the judges were accused of acting in 
the interest of monopolists and land-grabbers, when in 
fact they wei-e only extending to the grantees the protec- 
tion which our treaty with Mexico stipulated. 

2^/. As to the occap/itioi}. bij settlers of l/imls of tJir United 
St /tcs' In adcance of measures by the f/ocern merit fir t/ieir sale. 

'' The position of a large portion of the people of Cali- 
fornia, previous to 1860, with respect to the public lands, 
was unprecedented. The discovery of gold had brought, 
as stated, an immense immigration to the country. The 
slopes of the Sierra Xevada were traversed by many of 
the immigrants in search of the [irecious metals, and by 
others the tillable land was occupied for agricultural pur- 
poses. The title was in the United States, and until 1853 
there had been no legislation authorizing a settlement 
upon any of the public lands, and for some years after- 
wards the public surveys were extended over only a por- 
tion of them. Conflicting possessory claims naturally 
arose, and the question was presented as to the law ap- 
plicable to them. The Legislature in 1851 had provided 
that in suits before magistrates for mining claims, evidence 
of the customs, usages, and regulations of miners in their 
vicinage should be admissible, and, wdien not in conflict 

* Cornwall vs. Culver, 16 Cal., 429, and Mahoney vs. Van Winkle, 21 
Id., 576-580. 

+ Van Reynegau vs. Bolton, 95 U. S.. 33. 



25 

with tilt' coiistitiitioii :iu(l laws of tlio stato, slionlrl o;ov- 
rrii tlu'ir (Iccisioiu and tlir ]»riiici|>lc thus apin'oved was 
soon aiiiiTuMl ill ac'tioiis for iiiiniiiii: claiiiis in all courts, 
111 those cases it was considered that the first possessor or 
aiipropnator of the claim had tlu' hetter riii'ht as a<;'aiiist 
all parties exce[>t tlu' u-o\'c'niiiient , and that he, and per- 
sons claiiiiiiiL!,- under him, were eiitilled to protection. This 
principle received the entire concurrence of the court, and 
was a[)[)lie(l, in its fullest extent, for the protection of all 
possessory rights on tlie puldic lands. Thus, in Coryell vs, 
Cain, Judge Fiehl said, sp.'aking for the court : 

"It is umlontitedl}' true, as a general rule, tliat the clainiant in eject- 
ment must recover upon the strength of his own title, and not upon the 
weakness of his adversary's, and that it is a sulticient answer to his action 
to show title out of him and in a third i)arty. But this general rule has, 
in this State, from the anomalous condition of things arising from the 
peculiar character of the mining and landed interests of the country, 
been to a certain extent qualified and limited. The larger portion of the 
mining lands within the State belong to the United States, and yet that 
fact has never been considered as a sufficient answer to the prosecution of 
actions for the recovery of portions of such lands. Actions for the posses- 
sion of mining claims, water privileges, and the like, situated upon the 
public lauds, are matters of daily occurrence, and if the proof of the para- 
mount title of the government would operate to defeat them, confusion 
and ruin would be the result. In determining controversies between 
parties thus situated, this court proceeds upon the presumption of a 
grant from the government to the first appropriator of mines, water 
privileges, and the like. This presumption, which would have no place 
for consideration as against the assertion of the rights of the superior pro- 
prietor, is held absolute in all those controversies. And with the public 
lands which are not mineral lands, the title, as l)etween citizens of the 
State, where neither connects himself with the government, is considered 
as vested in the first possessor, and to proceed from him, " — (16 Cal., p. 
572.) 

The doctrine thus laid down was of incalculahle heneiit 
to all occupants of the puhlic lands of the United States 
in advance of measures by the government for their sale. 
It preserved peace among them, and gave them assurance 
that they would he protected in their possessions until 
the general government should interfere and assert its 
superior title. 



26 

od. As to fJic chdiK of CdJifondit to otini the f/old <iiitl silrer 
found III. (dl hiiaU in the Stote. 

" The difficulties attendant upon any attempt to give 
security to landed possessions in the State^ arising from 
the circumstances narrated, were increased by an opin- 
ion, which for some time prevailed, that the precious 
metals, gold and silver, found in various parts of the 
country, whether in public or private lands, Ijclonged to 
the State by virtue of her sovereignty. To this opinion a 
decision of the Supreme Court of the State, made in 185-3, 
gave great potency. In Hicks vs. Bell, decided that year, 
the court came to that conclusion, relying upon certain 
decisions of the courts of England recognizing the right 
of the Crown to those metals. The principal case on the 
subject was that of The Queen vs. The Earl of Xorthum- 
berland, reported in Plowden. The counsel of the Queen 
in that case gave, according to our present notions, some 
very fanciful reasons for the conclusion reached, though 
none were stated in the judgment of the court. The Su- 
preme Court of the State, without considering the force of 
the reasons assigned in that ca-ie adopted its conclusion ; 
and as the gold and silver in the British realm are there 
held to belong to the Crown, it was concluded, on the hy- 
pothesis that the United States have no municipal sover- 
eignty within the limits of the State, that they must be- 
long in this country to the State. The State, therefore, 
said the court, " has solely the right to authorize them " 
(the mines of gold and silver) "to be worked ; to pass 
laws for their regulation ; to license miners ; and to affix 
such terms and conditions as she may deem proper to the 
freedom of their use. In her legislation upon this subject 
she has established the policy of permitting all who desire 
it to work her mines of gold and silver, with or without 
conditions; and she has wisel}^ provided that their conffict- 
ing claims shall be adjudicated by the rules and customs 
which may be established by bodies of them working in the 
same vicinity."— (3 Cal., 227.) 



"Tlio minors soon ^tusixmI the full scope of tlic (Iceision 
thus rc-ndcrc'cK and the lands of jirivati' i.ro[ii'ic'toi-s were 
invaded \ov the purpose of mininii- as freely as the pnhhc 
land-. It was the pcdiev of the State to eneouraj^'e the 
(k'velopinent of the mini's, and no u'reater hititnde in ex- 
ploration eonld he desired than was thus saiu-titMied In' the 
highest trihunal of the State, 

" It was not long before a cry came tip from private pro- 
prietors against this invasion of their possessions. There 
was gold in limited (luantitifs scattered tlu'ough large and 
valuable districts, where the land was held in private |)ro- 
prietorship, and under the doctrine announced the whole 
might be invaded, and, for all useful purposes, destroyed, no 
matter how little remunerative the product of the mining. 
The entry might be made at all seasons, whether the hmd 
was tmder cuhivation or not, and without reference to its 
con<htion, whether eovei'ed with orchards, vineyards, gar- 
dens, or otherwise. It was evident that under such a state 
of things tlie ownei" of mineral land would never be se- 
cure in his possessions, llis title would be of little value 
if there was a right of invasion in the whole wn>rld. In 
fact, the land would be to him poor and valueless just in 
proportion to the actual richness and abundance of its 
products. 

" The Court was, therefore, eompeUed to put some hmi- 
tation upon the enjoyment by the citizen of this asserted 
risrht of the State, Accordingly, within two years after- 
wards, it held that although the State was the owner of 
the gold and silver found in the lands o^ private indi- 
viduals as well as in the public lands, " yet to authorize 
an invasion of private property in order to enjoy a public 
franchise would require more specific legislation than any 
yet resorted to," — (Stoakes vs. Barrett, 5 Cah. oO.) 

" The spirit to invade other people's lands, to which the 
original decision gave increased force, could not, however, 
be as easily repressed as it was raised in the crowd of ad- 
venturers who filled the mining regions. And when Judge 



28 

Field went on the l)onch, in 1857, the right to dig for the 
precious metals on the hinds of private individuals, under an 
assumed license of the State, was still asserted." But after- 
wards, in the case of Biddle Boggs vs. The Merced Mining 
Company* the whole suhject was ehihorately examined, 
and the doctrine repudiated. Judge Field wrote the ojiin- 
ion of the Court, which attracted much attention. The 
fallaciousness of the reasoning upon which the doctrine 
rested was so clearly shown, that the doctrine has never 
been reasserted since. 

" At a later day the court took up the doctrine, that the 
precious metals belonged to the State by virtue of her 
sovereignty, and exploded it. The question arose in 
Moore vs. Smaw, and Fremont vs. Flower, which were 
heard together.f In disposing of it, -Judge Field, speak- 
ing for the court, used the following language respecting 
the sovereignty of the State : 

" It is undoubtedly true that the Uuited States held certain rights of 
sovereignty over the territory which is now embraced within the limits 
of California, only in trust for the future State, and that such rights at 
once vested in the new State upon her admission into the Union. But 
the ownership of the precious metals found in public or private lands was 
not one of those rights. Such ownership stands in no different relation 
to the sovereignty of a State than tliat of any other property which is 
the subject of barter and sale. Sovereignty is a term used to express the 
supreme political authority of an independent State or Nation. What- 
ever rights are essential to the existence of this authority are rights of 
sovereignty. Thus the right to declare war, to make treaties of peace, 
to levy taxes, to take private property for public uses, termed the right 
of eminent domain, are all rights of sovereignty, for they are rights es- 
sential to the existence of supreme political authority. In this country, 
this authority is vested in the people, and is exercised through the joint 
action of their federal and State governments. To the federal govern- 
ment is delegated the exercise of certain rights or powers of sovereignty ; 
and with respect to sovereignty, rights and powers are synonymous 
terms ; and the exercise of all other rights of sovereignty, except as ex- 
pressly prohibited, is reserved to the people of the respective States, or 
vested by them in their local governments. When we say, therefore, that 
a State of the Union is sovereign, we only mean that she possesses su- 
preme political authority, except as to those matters over which such au- 

* 14 Cal. Rep., 373-380. 1 17 Cal. Rep , 200. 



29 

tlioriiv isdclc.uatctl (o tlie leiler.xl goviTniiicnt, or prohihifcd to tlio States; 
in otlu r words, tliat she possesses all tlic rij^hts and powers essential to 
the (>xistenee of an inih'penrtent political orj^anization, except as they are 
witlulrawn by the provisions of the Constitution of the United States. 
To the existence of this political authority of the State— this qualified 
sovereignty, or any i)art of it— the ownership of the minerals of <:;old and 
silver found within her limits is in no way essential. The minerals do not 
differ from the f^reat mass of iiroperty, the ownership of which maybe 
in the United States, or in individuals, without aflCecting in any respect 
the political jurisdiction of the State. They may be aniuired by the 
State, as any other property may be, but when thus aecjuired she will 
liold tliem in the same manner that individual i)roi)rietors hold their 
proi)erty, and by the same right : by the right of ownership, and not l)y 
any right of sovereignty." 

" The court also held that, although under the Mexican law 
the gold find silver found in land did not pass with a grant 
of the land, a diflerent result followed, under the common 
law, when a conveyance of land was made by an individual 
or by the government. By such a conveyance, without 
a special reservation, everything passed in any way con- 
nected with the land, forming a portion of its soil or fixed 
to its surface, 

" The doctrine of the right of the State by virtue of her 
sovereignty to the mines of gold and silver within her 
limits perished with this decision. It was never afterwards 
seriously asserted." * 



* The opinions of the court in the cases cited above— that of Biddle- 
vs. Merced Mining Company, and that of Fremont vs. Flower — were the 
subject of an article in the American Law Register of June, 1862, by 
Mr. Emory Washburn, Professor of Law in Harvard University. As the 
two cases grew out of the Mariposa grant, the Professor treated them as 
substantially one case, and concluded his article in the following 
language : 

" It would be pleasant, if this article had not l)ecome so extended, to 
dwell for a moment upon the reflections that are at once awakened, as one 
contemplates the various phases of this celebrated case, upon the silent 
yet resistless majesty of the law, so long as its robes of office are worn by 
men of learning, uprightness, and unsuspected moral courage, acting 
within their sphere. Here has been a controversy involving, it is 
said, millions in value, as well as many considerations of great hardship, 
exciting not a little local as well as personal feeling and animosity. It has 
been passed upon by three men, personally without power, the organs 
and officers of the law, and there the contest ends, for the law has spoken, 
and we are. after all, a law-abiding people." 



80 



Patents for Land by the United States. 

Patents for land by the United States, particnlarly those 
issued upon a contirmation of grants in Cahfornia of the 
former Mexican government, were the suhjeet of repeated 
consideration by the Supreme Court of the State while 
Judge Field w^as on its Ijench. In many opinions written 
by him, the operation of such patents was elaborately and 
exhaustively treated, and the law l)y which they were to be 
construed, their efl'ect in giving quiet and security to the 
patentees in the possession of their lands, tlie extent to 
which they are conclusive against attacks at law, and the 
circumstances under which they can be assailed in equity, 
were stated with a clearness and precision, which left noth- 
ing in doubt and closed the door to much vexatious and 
harassing litigation touching the ownership of tlie lands 
covered by them. The doctrines advanced by him have 
never been successfully controverted, and they have been 
approved by the Supreme Court of the United States.* 

Municipal Corporations. 

Municipal corporations, their powers, rights, and o])liga- 
tions,w^ere also the subject of consideration in numerous 
opinions of the Supreme Court of California written by 
Judge Field. Judge Dillon, in his recent work on Muni- 
cipal Corporations, speaks of these opinions in terms of 
the highest praise, makes frequent citations from them, 
and recognizes the fact that the views contained in them 
have been concurred in very generally by the courts of 
other States. 

In a series of adjudications in \^■hat are known in CnV}- 
fornia as tlie " City Slip Cases," wliere property of the city of 

* Moore vs. Wilkinson, 13 Cal., 478; Biddle Boggs vs. Merced Mining 
Co., 14 Id., 361-366 ; Stark vs. Barrett, 15 Id., 362 ; Mott vs. Sniitli, 
16 Id., 534 ; Teschemacker vs. Thompson, 18 Id., 20 ; Leese vs. Clark, Id., 
565 ; Same case a second time before the court in 20 Cal., 411 ; Estrada 
vs. Murphy, 19 Id., 268. See also Beard vs. Federy, 3d Wallace, 478. 



81 

San Fi-ancisco was sold uiHlcra void ordinanco and tlio pro- 
ceeds a{)i»r<)i»riatcd loi- nuinicipal purposes, it was held, that 
no title pa-^sed.and liiai under the rliai'ter of tlireity (which 
recpiircd sales oi' its pro[)erty to l»e made, by an ordinance 
adopted for that purpose, atter advertisement of the time 
and place and terms of sale) the appropriation of tlie pro- 
ceeds did not operate to ratify the sales, while at the same 
time it imposed U}»on the city the hability to pay hack the. 
money to the purchasers. It woukl seem plain that if the 
mere appropriation of the proceeds obtained under a void 
ordinance could li'ive vahdity to a sale of the city's prop- 
erty, the restraints imposed by the legislature upon the 
action of the city would he easily defeated. Referring to 
the principles stated in these decisions, Judge Dillon says 
that they " are vindicated with characteristic clearness and 
striking logical force, in able and interesting opinions of 
Mr. Chief Justice Field." * 

Among other ol)jections against a recovery of the 
money paid by the purchasers upon the void sale, it was 
urged, that the common council of the city w^as forbidden 
hy its charter to create or permit to he created any debt 
or liabilities, which in the aggregate, with all former debts 
or liabilities, should exceed $50,000 over and above its 
annual revenue, unless specially authorized 1)y an ordi- 
nance providing the ways and means for the payment of 
the annual interest and of the principal, and such ordinance 
were approved b}' a vote of the peo|)le. To this objection 
Judge Field, in speaking for tlie court, thus replied : 

" We are clear that the provision refers only to the acts or contracts 
of the city, and not to liabilities Avhich the law may cast upon her. It 
was intended to restrain extravagant expenditures of the public moneys ; 
not to justify the detention of the property of her citizens which she 
may have unlawfully obtained. The plaintiff claims that the city has 
got his money without any consideration — by mistake — and has appro- 

* McCracken vs. The City of San Francisco, 16 Cal., 591 ; Grogan vs. San 
Francisco, 18 Id., 607 ; Pimental vs. San Francisco, 21 Id., .359. See also 
Argenti vs. City of San Francisco, 16 Cal., 282, and Zottman vs. San 
Francisco. 20 Cal.. 96. 



82 

priated it to municipal purposes, and he insists that she is responsible to 
hiiu for it, because the law — not her contract or permission — renders her 
liable. Her liability, in this respect, is independent of the restraining 
clauses of the charter; it arises from the obligation to do justice — to re- 
store what belongs to others — which rests upon all persons, whether nat- 
ural or artificial. And it ma}* well be doubted whether it would be com- 
petent for the legislature to exempt the city, any more than private indi- 
viduals, from liability under circumstances of this character. Suppose, 
for example, that the city should recover judgment against an individual 
for $100,000, and collect the money upon execution, and upon appeal the 
judgment should be reversed; would it be pretended that the money 
could not afterwards be recovered? Could the city defend against the 
claim for restitution upon the pretence that she was already indebted 
over $50,000? Could she, to use the language of counsel, owe herself out 
of liabiliiy ? Suppose, again, an individual should pay the taxes upon 
his property, in ignorance that they had already been paid by his agent, 
could the city retain the aniount thus paid by mistake ? Could she 
plead her previous indebtedness as an excuse for the detention of the 
money to which she had no legal or equitable right? Suppose, again, the 
city should neglect to keep the streets in repair, and an individual should 
be injured in consequence — should break his leg or be otherwise crippled — 
could she allege her insolvency against his claim for damages? Would 
her pecuniary condition be an answer for the neglect of every duty, legal 
and moral? If this were so, she would be the most irresponsible corpo- 
ration on earth, and her treasury would be, in nu^ny instances, but a 
receptacle for others' property without possibility of restitution. The 
truth is, there is no such exemption from liability on her part. The same 
obligations to do justice rest upon her as rest upon individuals. She 
cannot appropriate to her own use the property of others, and screen 
herself from responsibility upon any pretence of excessive indebtedness. 
The law casts upon her the legal liability from the moral duty to make 
restitution. Admitting that the charter restricts her power to incur lia- 
bilities by her own acts, it still leaves her liable according to the 

general law. The restriction can, in any event, only apply to liabilities 
dependent for their creation upon the volition of the common council, 
and hence does not include liabilities arising from torts, or trespasses, or 
mistakes." — (McCracken vs. The City of San Francisco, 16 Cal., 631-t2.) 

MoRTUAdES. 

While Judge Field was on the bench the law of mort- 
gages in California was settled in conformity with the 
common understanding of men. Opinions of the court, 
written by him, made that the rule of law which was be- 
fore the rule of equity, namely : that a mortgage is not a 



conveyance, but a pledge only, redeemable by compliance 
with the condition on which it was given. Herman, the 
author oi' a recent and most learned work on mortgages, 
expresses the opinion that '• Xo maii in this country has 
done as nnich in developing souinl [)rinc![)l('s in regard to 
mortgages — that tliey are mere hy[);)thccatii)ns — as Judge 
Fiekl. To his labors on the Supreme Ben"h of CaHlbrnia, 
and in the United States Supreme Court, have been in- 
debted the courts of every State where tiie doctrine is 
maintained ; and his California opinions are cited as lead- 
ing and decisive of the true principle."* 

Other Cases. 

Xumerous other cases besides those to which reference 
has been made, presenting a great variety of questions, 
some of general and public interest, and others of local 
concern, were before the court whilst Judge Field was 
on the bench, in which he gave the opinion of the court. 
It would extend this sketch beyond the design of the writer 
to give even a syllabus of the cases. They related to 
the claim of the State to iive hundred thousand acres of 
land donated by the 8th section of the Act of Congress of 
Sept. 4tli, 1841, for purposes of internal improvement, 
and to its right to dispose of the lands in advance of the 
pubhc surveys ; — to contracts of the State for the support 
and labor of its convicts ; — to the power of the courts to 
compel by mandamus otlicers of the State to do their 
duty ; — to the coniiicting rights of miners to the use of 
the water of streams in the mountains for the purpose of 
mining ; — to the right of the wife to a share of the com- 
munity property under the law of Mexico and the law of 
Cahfornia ;— to the title of the City of San Francisco to 
lands within her limits as successor of a former Mexican 
Pueblo and under the grant of beach and water lots bv the 



* McMillau vs. Richards, 9 Cal., 365 ; Xagle vs. :sraoy, 9 Id., i26 : John- 
son vs. Sherman, lo Id., :i87 ; (Toodenow vs. Ewer. 16 Id., 461. 



:i4 

State ill 1851 ; — to tlie construction of wills ; — to the dis- 
tinction between mortgages and deeds of trust ; and to a 
great number of other subjects. A citation is given in 
the note of several of these cases.* 

Two cases not included among these deserve special 
notice; — in one of which — Ex-pa rte Newman, (9 Cal.,502,) 
relating to a law making Sunday a clay of rest — Judge 
Field wrote a dissenting opinion; and in the other^Prrriy 
vs. Washburn, (20 Gal., 318,) asserting the non-receiva- 
bility of legal-tender notes for State taxes — he wrote the 
opinion of the court. 

A Sunday Law, or a Law for a Day of Rest. 

In Ex-parte Xewinan the question arose as to the validity 
of a law of California, which provided that no person 
should keep open on Sunday " any store, warehouse, me- 
clianic shop, workshop, l)anking-li()use, manufacturing 
estabhshment, or otlier business house, for business pur- 
poses ;" or " sell or expose for sale any goods, wares, or 
merchandise" on that day ; and that a violation of these 
provisions should be deemed a misdemeanor for which a 
penalty was prescribed. The law excepted from its opera- 
tion the keepers of hotels, inns, taverns, restaurants, board- 
ing liouses, and livery stables, and the retailers of drugs 
and medicines, and certain articles of fresh food and ar- 
ticles required in cases of necessity or charity. Xor did 
the law apply to such manufacturing or other business 
establishments as were necessarily required to be kept in 
continual operation to accomplish their Inisiness. 

* Butte Canal and Ditch Co. vs. Vaughan, 11 Cal., 153 ; Baker vs. Baker, 

13 Id., 87 ; Pierce vs. Robinson, 13 Id., 116 ; Blanding vs. Burr, 13 Id., 343 ; 
Scott vs. Ward, 13 Id., 458 ; Koch vs. Briggs, 14 Id., 256; Noe vs. Card, 

14 Id., 577 ; Pixley vs. Huggins, 15 Id., 128; Norris vs. Harris, 15 Id., 226 ; 
State of California vs.McCauley, 15 Id., 429; Holliday vs. Frisbie, 15 Id., 
630; McCauley vs. Brooks, 16 Id., 12; Koppikus vs. State Capital Com- 
missioners, 16 Id., 249 ; Brumagim vs. Tillinghast, 16 Id., 267; Doll vs. 
Meador, 16 Id., 295 ; Halleck vs. Mixer, 16 Id., 575. 



85 

This law the iiiajoritv of the court decided to ])e in con- 
flict witli the chiuse of tlie eoiistiliitioii which ih'clared 
that •• the free exercise and enjoynient o!' rcH^ious [>ro- 
fession and worship, without disiTimination or profefence," 
shoukl forever l)e allowed in the State, holding- that in 
enforcinij: cessation from Lihoi- on a day held sacred hy a 
religious sect was a disi-riniination in favoi- of that sect. 
The court also decided that the Legislature hatl no right 
to forl)id the pursuit of a lawful occupation on one day of 
a week, any more than it liad a right to forbid it altogether, 
under the clause of the constitution declaring that all 
men have the inalienahle right of " ac(|uiring, possessing, 
and protecting property." 

From this decision Judge Field dissented, holding that 
the law only prescribed a day of rest from certain occu- 
pations as a rule of civil conduct, and had nothing to do 
with religious profession or worship, to which it did not 
allude in any of its provisions. And he thus vindicated 
its wisdom : 

"la its enactment the Legislature lias given the sanction of hiw to a 
rule of conduct wliich the entire civilized world recognizes as essential 
to the physical and. moral well-being of society. Upon no subject is 
there such a concurrence of opinion among philosophers, moralists, and 
statesmen of all nations, as on the necessity of periodical cessations from 
labor. One day in seven is the rule, founded in experience and sus- 
tained by science. There is no nation, possessing any degree of civiliza- 
tion, where the rule is not observed, either from the sanctions of the law 
or the sanctions of religion. This fact has not escaped the observation 
of men of science, and distinguished philosophers have not hesitated to 
pronounce the rule founded upon a law of our race. 

" The Legislature possesses the undoubted right to pass laws fen- the 
preservation of health and the promotion of good morals, and if it is of 
opinion that periodical cessation from labor will tend to both, and thinks 
proper to carry its opinion into a statutory enactment on the subject, 
there is no power, outside of its constituents, which can sit in judgment 
upon its action. It is not for the judiciary to assume a wisdom which it 
denies to the Legislature, and exercise a supervision over the discretion 
of the latter. It is not the province of the judiciary to jiass upon the 
wisdom and policy of legislation ; and when it does so, it usurps a p(nver 
never conferred by the constitution. 

" It is no answer to the requirements of the statute to say that mankind 
will seek cessation from labor by the natural influences of self-preserva- 



'3(> 

tion. The position ussimies that all men are independent, and at liberty 
to work wlienever they choose. Wliether this be true or not in theory, 
it is false in fact ; it is contradicted by every day's experience. The rela- 
tions of superior and subordinate, master and servant, principal and clerk, 
always have and always will exist. Labor is in a great degree depend- 
ent upon capital, and unless the exercise of the power which capital 
affords is restrained, those who are oldiged to labor will not possess the 

freedom for rest which they would otherwise exercise. The law steps 

in to restrain the power of capital. Its object is not to protect those who 
can rest at their pleasure, but to afford rest to those who need it. and 
who, from the conditions of society, could not otherwise obtain it. Its aim 
is to prevent the physical and moral debility which springs from nniji- 
terrupted labor ; and in this aspect it is a beneficent and merciful law. 
It gives one day to the poor and dependent ; from the enjoyment of 
which no capital or povVer is permitted to deprive them. It is theirs for 
repose, for social intercourse, for moral culture, and, if they choose, for 
divine worship. Authority for the enactment I find in the great object 
of all government, Avhicli is protection. Labor is a necessity imposed by 
the condition of our race, and to protect labor is the highest office of our 
laws." 

Indeed, every one c;in see that the only cliance for rest 
to the over-worked laboring chisses in (nir factories and 
worksliops, and in the heated rooms of our cities, is in a 
htvv compelling cessation from secular pursuits at regular 
intervals. AVithout it there would be for tliem only cease- 
less toil. To them, therefore, such a law is a great bless- 
ing. It enables them, one day in a week, to be with their 
families ; to seek with them the pure air of the country; 
to visit gardens, and places for quiet enjoyment ; to ex- 
change courtesies with friends and relatives, and to be free 
from the perpetual din of the shop, and the ever-pressing 
thought that only by the sweat of their l)row they can 
earn their daily bread. To the objection that vSunday is 
a day of religious observance by certain sects, Judge Field 
answered as follows : 

" The power of selection being in the Legislature, there is no valid rea- 
son why Sunday should not be designated as well as any other day. Prob- 
ably no day in the week could be taken which would not be subject to 
some objection. That the law operates with inconvenience to some is no 
argument against its constitutionality. Such inconvenience is an incident 
to all general laws. A civil regulation cannot be converted into a relig- 
ious institrution because it is enforced on a day that a particular religious 



37 

sect reji'anlsns sMcicd. 'PIic fact tliaf t lie civil rc.iiulat ion linds sn))])ort 

in the rcliiiidus oiiiiiion nl'a vast majority of llic jtcoph' of Caliloniia is no 
arunmcnt ajiainst its establishment. It wnnld ))c Ibrtnnate for so<'icty if 
all Avise civil rules obtained a ready obedience from the citizen, not 
merely from the recinirements of the law, bnt from conscientious or reli<i- 
iuus convictions of tlieir obliiiation. The law ai;;ainst homicide is not the 
less \\ ise and necessary l)ecause the divine commaTid is 'thou shalt do no 
murder." The legislation against perjury is not the less useful and essen- 
tial for the due administration of justice brcause liie injunction comes 
from the .Most High, 'th.Mi shalt not bear false witness against thy neigh- 
bor.' The establi.shmeni by law of Sunday as a day of rest from labor, 
is none the less a benetieent and hunume regulation because it accords 
with the divine precept that upon that day ' thou shalt do no manner of 
-vvork ; thou, and thy son. aiul thy daughter, thy man-servant and thy 
maid-servant, thy cattle, and the stranger that is within thy gates.' " 

To till' oltji'ctioii that tlie law was in conflict Avitli tlio 
clause dcclarinii' the iiialienahk' rights of all men to acquire, 
possess, and protect projxM'tv, he answered that the clanse 
was never intended to iidiiljit leu'islation u[)(>n them, and 
that the mode and manner ol' acquiring, possessing, and 
[ii-otccting property were matters npon which laws wei'e 
passed ;it eveiy every session of the Legislature. 

" All sorts of restrictions and regulations," he added, " are placed upon 
the acquisition and di.sposition of property. What contracts are valid, 
and what are invalid, when they must be in writing, and when they can be 
made by parol, what is essential to transfer chattels, and what to convey 
realty, are matters of constant legislation. Some modes of acquisition 
are subject to licenses, and some are prohibited. The right to acquire 
property, with the nse of it, must be considered in relation to other rights. 
It may be regulated lor the public good, though thereby the facility of 
acquisition is lessened, as in the sale of gunpowder and drugs, and in the 

practice of different professions. To say that a prohibition of work 

on Sunday prevents the acquisition of property, is to beg the question. 
With more truth it may be said, that rest upon one day in seven better 
enables men to accjuire on the other six." — (9 Cal., 527.) 

The decision of the com't was rendered at the April term 
in 1858. In 1861 the Legislature passed another Sunday 
law sinnlar in its provisions to the one declared to be un- 
constitutional, and af the July term of that year the court 
held it to be constitutional, tlms overruling the decision in 
E.v-p'irfr Nciniuin. and adopting the views expressed In' 
Judge Field in his dissenting opinion in that case. — (18 
Cal.'", 680.) 



The XoN-RECEivABiLiTY OF Le(;al-Teni)Er Xotes for 
State Taxes. 

Ill Perry V8. Waslil)iirn the question arose 'wliether 
Treasury notes of the United States were receivable for 
state and county taxes. The act of Congress made such 
notes " a legal tender in payment of all debts, private and 
public." The court held that Congress only intended by 
debts such obligations for the payment of money as are 
founded upon contract. Judge Field gave the opinion of 
the court, and in s[)caking on this point he said : 

" The act does not, in our judgment, have any reference to taxes levied 
under the laws of the State. It only speaks of taxes due to the 
United States, and distinguishes between them and debts. Its language 
is, ' for all taxes, internal duties, excises, debts, and demands of every 
kind due to the United States, the notes shall be receivable." When 
it refers to obligations other than those to the United States it only uses 
the term 'debts' ; the notes it declares shall be 'a legal tender in payment 
of all debts public and private.' Taxes are not debts within the meaning 
of this provision. A debt is a sum of money due by contract, express or 
implied. A tax is a charge upon persons or property to raise money for 
public purjjoses. It is not founded upon contract ; it does not establish 
the relation of debtor and creditor between the taxpayer and State ; it 
does not draw interest ; it is not the subject of attachment ; and it is not 
liable to set-off. It owes its existence to the action of the legislative 
power, and does not depend for its validity or enforcement upon the in- 
dividual assent of the taxpayer. It operates in invifiim.^^ 

Independent of tlie consideration mentioned, it is evi- 
dent that the States can collect their taxes in such way as 
they may see fit — in goods as well as money, as was for- 
merly done in some of the States; and that this right has 
never been surrendered to the general government. This 
case is important as l)eing the first one in which the re- 
ceival)ility of legal -tender notes for State taxes was brought 
before the courts for adjudication. 

The Supreme Court of the United States cited the de- 
cision with approval and followed it in Lane County vs. 
Oreo-on (7 Wall, 71). 



STEPHEN J. FIELD 



JUDGE OF THE SUPREME COURT OF THE 
UNTIED STATES. 



Mr. Field was eoinniissioned as a Justice of the Supreme 
Court of tlie United States on the 10th of March, 1863, but 
he did not take the oath of ofHce until the 20th of May 
afterwards. In June following he was assigned by the 
President to the Tenth Circuit, then consisting of the 
States of CaUfornia and Oregon.* When T^evada became 
a State she was included in the circuit. As a member of 
the Supreme Court he was required to attend the sessions 
of the court at Washington m the winter, and hold the 
Circuit Court in his circuit in the summer. He was thus 
compelled, until the overland railroad was completed, to 
travel, going by the way of the Isthmus, over twelve thou- 
sand miles a year, and now since the completion of the road 
he is obliged to travel over eight thousand miles a year. 
When his office was created he was allowed one thousand 
dollars a year for his travelling expenses, but in 1871 Con- 
gress repealed the law allowing this sum ; and now, notwith- 
standins: the immense distance he has to travel, and the 



* Under the 5th section of the "Act to amend the judicial system of 
the United States" of April 29th, 1802, (2 Stats, at Large, p. 156,) the 
President is authorized to allot the Justices of the Supreme Court to 
the circuits when a new justice is appointed in the recess of the court; 
such allotment to remain until a new allotment is made by the justices 
among themselves.— (See 2d Black's Rep., p. 7.) 



40 

great expenses to which he is thus subjected beyond those 
imposed upon his associates, he is forced to meet them 
out of his reguhir salai'v. He has never failed to visit 
his circuit any year since liis appointment, aUhough since 
the passage of the act of ISfJM, providing for the appoint- 
ment of circuit judges, lie has not been recpiired to attend 
a term in his circuit Init once in two years. Of the many 
important cases tried and disposed of l>y him there, men- 
tion will be made hereafter. 

When he went on the Supreme Bench, Taney was Chief 
Justice, and Wayne, Catron , Nelson ,Grier,Cliti:brd, vSwayne, 
Miller, and Davis were associate justices. Chief .lustice 
Taney died in the follov^aug year, and ]\Ir. Chase was a[)- 
pointed his successor. The business of the court is always 
greater tlian can he disposed of l)y the judges, and at 
every session cases involving im[)()rtant principles are de- 
cided. But those which have attracted the greatest atten- 
tion, and excited the deepest interest since 1863, have 
grown out of the civil war and the legislation to which it 
gave rise. 

The Milli(4an Case, 

" One of the earliest and most impoi'lant cases of this 
kind was the Milliga-)i case. In October, 18(J4, Milligan, 
a citizen of the United States and a resident of Indiana, 
was arrested by order of tlie military commander of the 
district and confined in a military prison near the capital 
of the State. He was subsequently, on the 21st of the 
same month, put on trial, before a military commission 
convened at Indianapolis, in that State, upon charges of: 
1st, Conspiring against the Government of the United 
States ; 2d, Atibrding aid and comfort to the rebels against 
the authority of the Urnted States ; 3d, Inciting insur- 
I'ection ; 4th, Disloyal practices ; and 5th, Violation of 
the laws of war ; and was found guilty and sentenced to 
death by hanging. He was never in the military ser- 
vice ; there was no rebellion in Indiana ; and the civil 



41 

courts wvvc opoii in tluit State and in the iindislnrltod cx- 
c'rcis(> o1' tlu'ir jni'iscru-tioii. Hu' sentence of the military 
commission was aflinncd l)_y tlu; l^'esidcnt, who directed 
that it shonld he carried into immediate exccntion. The con- 
demned thi'renpon prestMited a petition to the Circnit (\)nrt 
of the I nited States in Imhana lor a ^vrit o'( linhniM cDi-pti.^, 
prayino- to he discliarii-ed from cnstody, adeuMnLi- the ille- 
gahty of his arrest and of the |)roceedinL':s of the mihtary 
commission. The jndiics of the Circnit Conrt were di- 
vided in opinion npon the question whether the ^vrit slioidd 
he issned and the petitioner diseharii-cd, whieh, of coiirse, 
in\'(>lved the Jurisdiction of the military commission to try 
him, rpon a certificate of (hvision the case was l)rought 
to the Supreme Court at the I)ecend)er term of IHil-'). 

The case was elaborately aro-ued l»y aide and (hstino-uislied 
counsel, consistino; of Mr, Joseph E. \[c])onald, now U, 
S. Senator from Indiana, Mr, James A, Garfield, a dis- 
tinguished mendjer of Congress, Mr, Jeremiah S, Black, 
the eminent jurist of Pennsjdvania, and Mr. David Dudley 
Field, of Xew York, for the petitioner ; and by Mr. Henry 
Stanbery, tlie Attorney-CTeneral, and Gen, B, F, Butler, 
for the goverimient, Tlieir arguments were remarkable 
for learning, research, abiHty, and. eloquence, and will 
re[tay the careful perusal not only of the student of law, 
l)ut of all lovers of constitutional liberty. The judgment 
of tlie c(HU't was for the liberty of the citizen. All the 
judges agreed to his discharge, but tlie opinion, which has 
given so much celebrity to the case, and placed the protec- 
tion of the citizen, in States wliere the civil courts are open, 
on solid grounds, obtained the approval of only five of the 
j udges against four of them, Jmh/e Field was one of the five ; 
his rote irns esuciifidi fo iii<il;r ihuf diiinion (he judgment of the 
court. " The opinion was written by Mr. Justice Davis, and 
it will he a perpetual monument to his honor. It laid down 
in clear and unnustakable terms the doctrine tluit military 
connnissions organized during the war, in a State not in- 
vaded nor engaged in rebellion, in which the federal courts 



42 

were open and in the undisturbed exercise of their judicial 
functions, had no jurisdiction to try a citiz3n,\vho was not 
a resident of a State in rebellion, nor a prisoner of war, 
nor a person in the military or naval service ; and that 
Congress could not invest them with any such power ; and 
that in States where the courts were thus open and undis- 
turbed, the guaranty of trial by jury contained in the Con- 
stitution was intended for a state of war as well as a state 
of peace, and is equally binding upon rulers and people 
at all times and under all circumstances." 

The Cummings Case. 

" At the same term witli the Milligan case the test-oath 
case from Missouri was brought before the court and ar- 
gued. In January, 1865, a convention had assembled in 
that State to amend its constitution. Its members had been 
elected in November previous. In April, 18(35, the constitu- 
tion, as revised and amended, was adopted by the conven- 
tion, and in June following by the people. Elected, as the 
members were, in the midst of the wMr, it exhibited through- 
out traces of the animosities which the w^ar had engendered. 
By its provisions the most stringent and searching oath as 
to past conduct known in history was required, not only 
of officers under it, but of parties holding trusts and pursu- 
ing avocations in no w^ay connected with the administra- 
tion of the government. The oath, divided into its sep- 
arate parts, contained more than thirty distinct affirmations 
touching past conduct, and even embraced the expression 
of sympathies and desires. Every person unable to take 
it was declared incapable of holding in the State " any 
office of honor, trust, or protit under its authority, or of 
being an officer, councilman, director or trustee, or other 
manager of any corporation, public or private, now exist- 
ing or hereafter established by its authority, or of acting 
as a professor or teacher in any educational institution, or 
in any common or other school, or of holding any real 



4^^ 

e^»t;Uo (tr otliei* property in trust for tlio use ornny cliiircli, 
reliu'ions society, or congTegation. " 

And every ihm-sou liolding, at tlie time the ameiuled 
eouslitiitioii IodIv etiect, any of the olliees, ti'dsts, or posi- 
tions mentioned, \vas i'e((uired, within sixty days thereafter, 
to take the oath ; and, if lie laiU'd to eomply with this re- 
(iuirement,it was dechvred that his oitiee, trust, or position 
shtuild Ipso fdi-to hecome vaeaiit. 

Xo person, after the expiration of the sixty days, was 
permitted, without takino; the oath, "to ]>ra('tiee as an 
attorney or eounsellor-at-law,'' nor,- after that period i-ouhl 
'' any person V)e eom|.)etent as a hishop, pi'iest, deaeon, 
minister, elder, or other clergyman, of any refigious per- 
suasion, sect, or denominafion, to teach, or preach, or sol- 
emnize marriages,'" 

Fine and imprisonment were prescrihed as a punishment 
for holding or exercising any of "the otiices, positions, 
trusts, professions, or functions " specified, without having 
taken the oath ; and false swearing or affirmation in taking 
it was declared to be perjury, punishable by imprisonment 
in the penitentiary. 

Mr, Cummingsof Missouri, a priest of the Roman Cath- 
olic Church, was indicted and convicted, in one of the cir- 
cuit courts of that State, of the crime of teaching and 
preaching as a priest and minister of that religions denom- 
ination without having first taken the oath thus prescribed, 
and was sentenced to pay a fine of five hundred dollars 
and to be committed to jail mitil the same was paid. On 
appeal to the Supreme Court of the State the judgment 
w^as aiiirmed, and the case w^as brought on a writ of error to 
the Supreme Court of the United States, It was there argued 
with great learning and ability by distinguished counsel, 
consisting of Mr. ^Montgomery Blair, of Washington, Mr, 
David Dudley Field, of Xew York, and Mr, Heverdy 
Johnson, of Maryland, for Mr. Cummings ; and by Mr. 
G. P, Strong and Mr, John B, Henderson, of Missouri, the 
latter then Fnited States Senator, for the State. 



44 

" It was evident that the power asserted by the State of 
Missouri to exact this oath for past conduct from pai-ties, 
as a condition <»f their continuing to pursue certain pro- 
fessions, or to hokt certain trusts, might, if sustained, he 
often exercised in timi's of excitement to tlie oppression., 
if not ruin, of the citizen. For, if the State couhl require 
the oath for the acts mentioned, it might rerpiire it for any 
a(tts of one's past hfe, the nundjer an<l charactor of whicli 
wouhl (k'[»end upon the mere will of its legishiture. It 
might compel one to affirm, under oatli, that he liad never 
viohited the Ten Gommandments, nor exercised his politi- 
cal rights except in conformity with the views of the ex- 
isting majority. Indeed, under this kind of legishition, 
the most flagrant wrongs miglit be committed and whole 
classes of people deprived, not only of their political, but 
of their civil rights. 

''It is difficult to speak of the whole system of expurga- 
tory oaths for past conduct without a shudder at the 
sutiering and oppression they were not only capable of 
eliecting but often did eft'ect. Such oaths have never been 
exacted in England, nor on the Continent of Europe. 
Test-oaths there have always been limited to an affirma- 
tion on matters of present belief, or as to present dispo- 
sition towards those in power. It was reserved for the 
ingenuity of legislators in our country during the civil 
war to make test-oaths reach to past conduct. 

" The court held that enactments of this character, op- 
erating, as they did, to deprive parties, by legislative de- 
cree, of existing rights for past conduct, wdthout tlie for- 
mality and the safeguard of a judicial trial, fell within the 
inhibition of the Constitution against the passage of bills 
of attainder. In depriving parties of existing riglits for 
past conduct, the provisions of the constitution of Missouri 
imposed, in effect, a punishment for such conduct. Some 
of the acts for which such deprivation was imposed were not 
punishable at the time ; and for some this deprivation was 
added to the punishments previously prescribed, and thus 



4.") 

they IV'II uihUm' tlu- liii'thev prohibiticMi of tlic roiistitutioii 
ao-aiiisi tlu' [.:i-s:m\' *>!' an ex post fi -In law. '\\w decision 
o!" the cM)ui-r, thiTt'lorc". was for tlie discliari>;e of the Cath- 
olic priest. The jndu-iuent against liini was reversed, and 
the Supreme Court o!' Missouri was directed to onUu- the 
inferior coui't hy wliich he was tried to set liini at hherty."' 
This judu-nient ohtained the concurrence of only tive 
judges against four of them. .JmJ-i,- F!rhl u:/.^ one of the 
tire : Jm rote irfia e.sifienihil to th'it /iiit'/niciit ; (t)ttl he irrote the 
opinion of the conii. 

TiiK Garlaxi) Cask. 

Immediately follt)wing the case of Cummings that of 
E.r-p:irte Garland was argued, involving the validity of the 
iron-clad oath, as it was termed, prescribed for attorneys 
and counsellors-at-law l>y the act of Congress of January 
:i4tli, IcSi!."). Mr. A. H. Garland, now Tnited States Sena- 
tor from Arkansas, had been a member of the bar of the 
Supreme Court of the United States before the civil war. 
When Arkansas passed her ordinance of secession and 
joined the (V)nfederate States, he went with her, and was 
one of her representatives in the Congress of the Confed- 
eracy. En July, 1865, he received from the President a 
full pardon for all otfences committed by his participation, 
director implied, in the rebeUion. At the following term 
of the court he produced his pardon, and asked permission 
to continue to practice as an attorney and counsellor with- 
out taking the oath required by the act of Congress, and 
the rule of the court made in conformity witli it, which 
he was unable to take by reason of the oiiices he had held 
under the Confederate Government. 

The application was argued by eminent counsel, con- 
sisting of Mr. Matthew II. Carpenter, of Wisconsin, and 
Mr. Reverdy Johnson, of Maryland, for the petitioner, 
Mr. Garland, and Mr. Marr, another apphcant for admis- 
sion, who had participated in the rebellion, tiling written 
aro-uments ; and by Mr. Speed, (^f Kentucky, and Mr. 



4(J 

Henry Stanbery, tlie Attortiey-Geiieral, on tlie other side. 
The whole subject of expurgatory oaths was discussed, 
and :dl tliat could be said on either side was fully and 
elaborately presented. 

^' Tlie court in its decision followed the reasoning of the 
Cumniings case and held that the law was invalid, as applied 
to the exercise of the petitioner's right to practice his pro- 
fession; that such right was not a mere indulgence, a matter 
of grace and favor, revocable at the pleasure of the court, 
or at the command of the legislature ; l)ut was a right of 
which the petitioner could be deprived only by the judg- 
ment of the court for moral or professional delinquency. 
The court also held that the pardon of the petitioner re- 
leased him from all penalties and disabilities attached to tlie 
otience of treason committed by his participation in the re- 
Ijellion, and that, so far as that otfence was concerned, he 
was placed beyond tlie reach of punishment of any kind. 
But to exclude him by reason of that ofLence — that is, by 
requiring him to take an oath that he had never com- 
mitted it — was to enforce a punishment for it notwith- 
standing the pardon ; and that it was not within tlie con- 
stitutional power of Congress thus to inflict punishment 
beyond the reach of executive clemency." 

The judgment in this case also was pronounced by live 
of the judges against four of them. Jialf/e Field here nefiiln 
WHS one of the fie e. His rote ir>/s esserttial to the judt/inent ; 
and. he wrote the opinion of the court * 

The McArdle Case. 

" The Reconstruction Acts, so-called — that is, '^ An act to 
provide for the more ethcient government of the rebel 

"111 the decision of the two test-oath cases — the Cumniings case and 
the Garland case — Justices Wayne, Nelson, Grier, Clififord, and Field con- 
curred. Chief Justice Chase and Justices Swayne, Miller, and Davis dis- 
sented. Afterwards Chief Justice Chase expressed his concurrence in the 
opinion of the majority ; and the decision was followed hy the whole 
court, with the exception of Mr. Justice Bradley, in the case of Pierce 
vs. Carskadon, decided at Hie December term, 1872. — (16 Wallace, 234.) 



47 

States; of March -Id, 18G7, and :m net of tlic :^:5(l of the 
same month, snp[)leinentary !•• llu' fornicr- wcri' violctitly 
attacked in C'onu'i'oss when hclorc it for consideration, as 
in\aHd jniconstitnlidnal, and arbiti'ary measures of the_i2:ov- 
ernmcnt ; and as soon as tlicy were [)asso(l Narions steps 
were taken to hrini;- tliem to tlie test ol'Jadieial examina- 
tion and arrest their enfoi'eement. Those actsdivide<l the 
late insurgent States, except Tennessee, into five mihtary 
(Hstriets, and phiced them under miHtaiy control to he ex- 
ercised mitil constitutions, containing various provisions 
stated, were adopted and approved by Congress, and the 
States declared to be entitled to representation in that body. 
The State of Georgia, in April following their passage tiled 
a hill in the Supreme Court invoking the exercise of its 
original jurisdiction, against Stanton, Secretary of War, 
Grant, General of the Army, and Pope, Major-General, 
assigned to the command of the Third Military l^istrict, 
consisting of the States of (Georgia, Floi'ida, and Alahanui; 
to restrain those officers from carrying into ettect the pro- 
visions of the acts. The bill set forth the existence of the 
State of Georgia as one of the States of the Union ; the 
civil war in which she, with other States forming the 
Confederate States, had been engaged with the government 
of the United States; the surrender of the Confederate 
armies in 18G5,and lier sul)mission afterwards to the Con- 
stitution and laws of the Union ; tlie withdrawal of the 
militar}' government from Georgia by the rresident as 
Commander-in-Chief of the army of the United States; the 
re-organization of the civil government of the State under 
his direction and with his sanction; and that the govern- 
ment thus re-organized was in full possession and enjoy- 
ment of all the rights and privileges, executive, legislative, 
and judicial, belonging to a State in the Union under the 
Constitution, with the exception of a representation in the 
Senate and House of Representatives. Tlie bill alleged 
that the acts were designed to overthrow and annul the ex- 
isting siT)vernment of the State, and to erect another and a 



48 , 

ditferent government in its place, unauthorized by the 
Constitution and in defiance of its guaranties ; and that 
the defendants, acting under orders of the President, were 
about to set in motion a portion of the army to take mih- 
tary possession of the State, subvert her government, and 
subject her people to military rule." 

The court, however, dismissed the bill, holding that it 
called fo]- judgment upon a political question. — (6 Wal- 
lace, 50.) Other attempts were made to obtain the judg- 
ment of the court upon the legislation in question, but until 
the McArdle case, they failed from the assumed want of 
jurisdiction in the court to pass upon its vahdity as the ques- 
tion was presented. But in the McArdle case the validity of 
that legislation came up in such a form that its considera- 
tion could not he avoided. In Xoveml)er, 1867, McArdle 
had been arrested and held in custody by a military com- 
mission organized in Mississippi under the Reconstruction 
Acts, for trial upon charges of (1) disturbing the public 
peace ; (2) inciting to insurrection, disorder, and violence ; 
(3) libel ; and (4) impeding reconstruction. He there- 
upon applied to the Circuit Court of the United States for 
the District of Mississippi for a writ of h'/beas corpus, in order 
that he might be discharged from his alleged illegal im- 
prisonment. The writ was accordingly issued, but on the 
I'eturn of the officer showing the authority under whicli the 
petitioner was lield, he was ordered to be remanded. From 
that judgment he appealed to the Supreme Court. Of 
course, if the Reconstruction Acts were invalid the peti- 
tioner could not be held, and he was entitled to his dis- 
charge. The case excited great interest throughout the 
country. Judge Sharkey and Robert J. Walker, of Mis- 
sissippi, David Dudley Field and Charles O'Connor, of Xew 
York, and Jeremiah S. Black, of Pennsylvania, appeared 
for the appellant ; and Matthew^ II. Carpenter, of Wiscon- 
sin, Lyman Trumbull, of Illinois, and Henry Stanbery, the 
Attorney-General, appeared for the other side. The case 



4^) 

was tliorou2;lily argued, as anv one must know 1'r<uu the 
character of the counsel. 

'' Seldom has the court listened to arguments equal in 
learning, ability, and eloquence. Tlie whole subject was 
exhausted. As tlie arguments were widely published in 
the public journals, and read throughout the country, they 
prtxluced a profound effect. Tbe impression was general 
that the Reconstruction Acts could not l)e sustained ; that 
they were revolutionary and destructive of a republican 
form of government in the States, which the Constitution 
required the federal government to guarantee. Of course 
what the judgment of the court would have been cannot 
be known, as it never expressed its opinion. The argu- 
ment was had on the 2d, 3d, 4th, and 9th of March, 1868, 
and it was expected that the case w^ould be decided in reg- 
ular course of proceedings wdien it was reached on the sec- 
ond subsequent consultation day, the 21st. In the mean- 
time an act was quietly introduced into the House, and 
passed, repealing so much of the law of February 5th, 1867, 
as authorized an appeal to the Supreme Court from the 
judgment of the Circuit Court on writs o^ h'lheas corpus, or 
the exercise of jurisdiction on appeals already taken. The 
President vetoed the bill, but Congress passed it over his 
veto, and it became a law" on the 27th of the month.* 
Whilst it was pending in Congress the attention of the 
Judges was called to it, and in consultation on the 21st 
they postponed the decision of the case until it should be 
disposed of. It was then that Mr. Justice (Irier wrote the 
followung protest, wdiich he afterwards read in court : " 



Protest of ^NIk. Justice Grier. 



ly RE 1 
^NIcArdle. / 

This case was fully argued in the beginniug of this month. It is a 
ease that involves the liberty and rights not only of the appellant, but of 
millions of ou r fellow-citizens. The country and the parties had a right to 
expect that it would receive the immediate and solemn attention of this 
court. By the postponement of the case we shall subject ourselves, 

* 15 Stats, at Large. 44. 



whether justly or unjustly, to the imputation that we have evaded the 
performance of a duty imposed on us by the Constitution, and waited 
for legislation to interpose to supersede our action and relieve us from 
our responsibility. I am not willing to be a partaker either of the eulogy 
or opprobrium that may follow ; and can only say : 
" Pudet ha;c opprobria nobis, 
Et dici potuisse ; et non potuisse repelli." * 

R. C. Griek. 
I am of the same opinion with my brother Grier, and unite in his pro- 
test. Field, J. 

After the passage of the repeahng act, the case was con- 
tinued ; and at the ensuing term the appeal was dismissed 
for want of jurisdiction. — (7 Wall., 506.) No further di- 
rect attempt was ever afterwards made to obtain the judg- 
ment of the court upon the constitutionality of the Recon- 
struction Acts. 

Confiscation Cases. 

On the 17th of July, 1862, the President approved of 
the act of Congress commonly known as the Confiscation 
Act. It is entitled " An act to suppress insurrection, to 
punish treason and rebellion, to seize and confiscate the 
property of rebels, and for other purposes." Its first sec- 
tion prescribed the punishment for treason thereafter com- 
mitted. It punished it with death, or, in the discretion of 
the court, with imprisonment for not less than five years and 
a fine of not less than ten thousand dollars ; and it provided 
that the slaves of the party adjudged guilty, if any he had, 
should be declared free. The second section provided for 
the punishment of the oftence of inciting, setting on foot, 
or engaging in any rebellion or insurrection against the 
authority of the United States or the laws thereof, or en- 
gaging in or giving aid and comfort to the rebellion or 
insurrection then existing. The third section declared 
that parties guilty of either of the ofiences thus described 



*" It fills us with shame that these reproaches can be uttered, and can- 
not be repelled." The words are found in Ovid's Metamorphoses, Book 
I., lines 758-9. In some editions the last word is printed refelli. 



■)1 

should 1)0 forever incapable and dis(iiialitied to Inild any 
office under the United States. The I'onrth section pro- 
vided tliat Ihe act should net atlect the prosecution, con- 
viction, or punishment of pi'i'sons u-uilty of treason before 
tlie passaii'e of the act, unless such persons were convicted 
undei- the act itself. The tittli section declared " that to 
insure the speedy termination " of the reliellion, it should 
be the duty of the President to cause the ^- seizure of all 
tlie estate and property, money, stocks, credits, and efiect»" 
of certain persons named therein, and to apply and use 
the same and their proceeds for the support of the army 
of the United States. Among the chisses named were in- 
cluded persons who might thereafter act as officers, mili- 
tary or civil, under the Confederate States, or hold any 
agency under them, or any of the States composing the 
Confederacy, and persons owning propsrty in any loyal 
State or Territory of the United States, or in the District of 
Columbia, who should thereafter assist and give aid and 
comfort to the rebellion. The sixth section declared that 
if any person within any State or Territory of the United 
States, other than those aboved named, after the passage of 
the act, being engaged in armed rebellion against the 
United States, or in aiding or abetting such rebeUion, 
should not, within sixty days after public warning and 
proclamation of the President, cease to aid and abet it, 
and return to his allegiance to the United States, all his 
" estate and property, moneys, stocks and credits" should 
be hable to seizure ; and that '' all sales, transfers, or con- 
veyances of any such property after the expiration of the 
said sixty days " shotdd be " null and void," and that it 
-should be '' a sufficient bar to any suit brought by such 
person for the possession or the use of such property, or any 
of it, to allege and prove " that he was one of the persons 
described in the section. 

The other sections of the act i)rescribed the proceedings 
to be taken for the condemnation of the property after it 
had been seized and for its disposition The " other pur- 



po.ses " ineutioncd in the title of the act related princi- 
pally to slaves, tlieir eniploj'nient or colonization, and the 
power of the President to proclaim annesty and pardon. — 
(12 Stats., 590.) 

The proclamation of the President, reference to which 
was made in the sixth section, was issued aiid pu])lished 
on the 25th of July 1862.— (12 Stats., 1266.) 

Before the constitutionality of this act was passed upon 
hy the Supreme Court, the question arose as to the import 
and meaning of the last clause of the sixth section, declaring 
"all sales, transfers, and conveyances" of property by per- 
sons not heeding the warning of the President and ceasing 
to aid the rebellion, to be null and void. In Corbett vs. 
Xutt (10 Wall., 479) it was contended that a dcrlse to one 
Mrs. Plunter, a resident in Virginia, within the Confederate 
lines, was a transfer within the meaning of the act, and by 
its provisions was invalid. But the court answered, that 
assuming that a devise was included within "the sales, 
transfers, and conveyances " invalidated by the act, such 
invalidity could only be asserted by the United States. 
The act contemplated the seizure and confiscation of the 
property of certain persons engaged in the rebellion, and 
authorized the institution of proceedings for tliat purpose; 
and Judge Field, speaking for the court, said : 

" It was to prevent these provisions from being evaded by the parties 
whose property was liable to seizure that ' sales, transfers, and convey- 
ances ' of the property were declared invalid. They were null and void as 
against the belligerent or sovereign right of the United States to appropri- 
ate and use the property for the purpose designated, but in no other re- 
spect, and not as against any other party. Neither the object sought, nor 
the language of the act, requires any greater extension of the terms used. 
The United States were the only party who could institute the proceed- 
ings for condemnation ; the offence for which such condemnation was de- 
creed was against the United States, and the property condemned, or its 
proceeds, went to their sole use. They alone could, therefore, be affected 
by the sales. 

" Any other construction would impute to the United States a severity 
in their legislation entirely foreign to their history. No people can exist 
without exchanging commodities. There must be buying and selling and 



53 

exclianniiiii ill cvory ciiiiiniuiiily, or the -iivator i)art of its inhabitants 
would lia\c lu-itluT Ibinl nor laiincnt. And yet tlic aijiiunciit of the de- 
fendant, if good for anything, goes to this extent, that by the act of Con- 
gress 'all sales, transfers, and conveyances' of property of the vast num- 
bers engaged in the late rebellion against the United States, constituting 
the great majority of many towns and cities, and even of several States, 
were utterly null and void ; that even the commonest transactions of ex- 
I'liange in the daily life of these people were tainted with invalidity. It is 
(litHeult to conceive the misery which would follow from a legislative de- 
cree of this wide-sweeping character iu any community, where its execu- 
tion was (Diiceived to be possible, or coniidence was reposed in its valid- 
ity."— 1 1(1 Wall., 479-480. 1 

III the ease of Miller vs. riiited States (11 AVall., 2(38) 
the question of the eonstitutionality of the aet came di- 
rectly before the court. In tluit case 200 .shares of stock in 
tiie Michigan Southern and Xorthern Indiana Railroad 
Company, and 343 shares in the Detroit, Monroe and Toledo 
Railroad Co., the property of one Samuel Miller, a resi- 
dent of Virginia, was seized by the marshal of the District 
of ^Michigan under the act, and, by proceedings in the Dis- 
trict Court of that district, were condemned as forfeited 
to the Tnited States. The IT. S. Circuit Court affirmed 
the decision, and the case was taken to the Supreme Court. 
Besides various ol^jections urged to the decree, for irregular- 
ities in the alleged seizure and proceedings, the unconstitu- 
tionality of the act under which it was rendered was as- 
serted. The court met this question directly, and affirmed 
the validity of the act, holding that, while so much of it as 
imposed [>enalties for treason was passed in the exercise 
of the municipal power of Congress to legislate for the 
punishment of oliences against the sovereignty of the 
United States, all that portion which provided for the con- 
fiscation of property of rebels was passed in the exercise 
of the war powers of the government. The opinion of the 
court was delivered by Judge Strong, and received the 
concurrence, on this point, of all the judges present at the 
argument, except Judges Cliftbrd and Field. Chief Jus- 
tice Chase was absent from the court the whole term on 
account of ill-health. Judge Xelson was engaged on the 



54 

Joint High Coniiuissioii for the settlement, by treaty, of 
questions in dispute between the United States and Great 
Britain. Judges Chfibrd and Field dissented, Judge Field 
giving a dissenting opinion. They did not deny the strict 
legal right of the government to confiscate the private 
property of enemies, that is, of permanent inhabitants of 
the enemies' country, although by the humane policy of 
modern times sucli property, unless taken in the field or 
besieged towns, or as a military contribution, is usually 
exempt from confiscation; but they conteufU'd tliat tlie 
act in question was not directed against enemies as such, 
but against persons who were guilty of certain alleged 
often ces. 

After stating tlie several provisions of the act, Judge 
Field said as follows : 

" It would seem clear, theretbre. that the provisions of the act were not 
passed in the exercise of the war powers of the oovernnient, but in the 
exercise of the municipal power of the government to legislate for the 
punishment of offences against the United States. It is the property of 
persons guilty of certain acts, wherever they may reside, in loyal or dis- 
loyal States, which the statute directs to be seized and confiscated. It is 
also for acts committed after the passage of the statute, except in one 
particular, corrected by the joint resolution of the two houses, that the 
forfeiture is to be declared. If it had been the intention of the statute 
to confiscate the property of enemies, its prospective character would 
have been entirely unnecessary, for whenever jjublic war exists the right 
to order the confiscation of enemies' property, according to Mr. Chief 
Justice Marshall, exists with Congress. 

" That the legislation in question was directed, not against 'enemies, 
hut against persons who might be guilty of certain designated public 
offences, and that the forfeiture ordered was intended as a punishment 
for the offences, is made further evident by what followed the passage of 
the act of Congress. After the bill was sent to the President it was as- 
certained that he was of opinion that it was unconstitutional in some of 
its featui-es, and that he intended to veto it. His objections were that 
the restriction of the Constitution concerning forfeitures not extending 
beyond the life of the offender had been disregarded. To meet this objec- 
tion, which had been communicated to members of the House of Kepre- 
sentatives, where the bill originated, a joint resolution explanatory of the 
act Avas passed by the House and sent to the Senate. That body, being 
informed of the objections of the President, concurred in the joint reso- 
lution. It was then sent to the President and was received by him be- 



55 

fore the expiration of the ten clays allowed him for the consideration of 
the oris^iiial 1)111. lie nliirncd the bill and resolntion to;j;et.her to the 
House, wliere ihcy originated, with a message, in which he stated 
that, considerin<r the act and the resolution explanatory of the act as 
being substantially one, he had approved and signed both. That joint 
resolution dcclari's that tlie itrovisions ol' the third clause of the filth 
section of Hr- art shall be .so construed as not (;> apply to any act or acts 
done prior to its i)a.s.sage, ' nor .shall any i)unislimenl or proceedings 
under said act be so construed as to work a forfeiture oi' the real estate 
of the oftender beyond his natural life.' 

"The terms here used, ' forfeiture ' of the estate of the ' offender,' have 
no application to the confiscation of enemies' property uiuler the law of 
nations. They are, as justly observed by counsel, strictly and exclusively 
applicable to punishment for crime. It was to meet the constitutional re- 
quirement that the punishment by forfeiture should not extend beyond 
the life of the offender that the joint resolution was passed. The Presi- 
dent said to Congress, the act is penal, and does not conform to the require- 
ment of the Constitution in the extent of punishment which it author- 
izes, and I cannot, therefore, sign it. Congress accepts his interi)retation, 
and by its joint resolution directs a construction of the act in accordance 
with his views. And this construction, thus directed, is decisive, as it 
appears to me, of the character of the act. Indeed it is dififlcult to con- 
ceive of any rea.son for the limitation of the forfeiture of an estate to the 
life of the owner, if such forfeiture was intended to apply only to the 
property of public enemies.'" 

" The inquiry, then, arises whether proceedings in rem for the confis- 
cation of the property of parties charged to be guilty of certain overt acts 
of treason, can be maintained without their previous conviction for the 
alleged offences. Such proceedings, according to Mr. Chief Justice Mar- 
shall, may be had tor the cou<leniuation of enemies' property when au- 
thorized by Congress. The proceedings in such cases are merely to authen- 
ticate the fact, upon which, under the law of nations, the confiscation fol- 
lows. But here the inquiry is, whether, upon the assumption that a party 
is guilty of a particular public offence, his property may be seized, and 
upon proof of his guilt, or its assumption upon his failure to appear upon 
publication of citation, condemnation may be decreed. The inquiry is 
prompted from the supposed analogy of these cases to proceedings in rem 
fur the confiscation of property for offences against the revenue laws, or 
the laws for the suppression of the slave-trade. But in these cixses, and 
in all cases where proceedings in rem are authorized for a disregard of 
some municipal or public law, the offence constituting the ground of con- 
demnation inheres, as it were, in the thing Itself. The thing is the in- 
strument of wrong, and is forfeited by reason of the unlawful use made 

* See Bigelow vs. Forrest, 9 Wall., 350, and McVeigh vs. United States, 
11 Wallace, 259. 



56 

of it, or the unlawful condition in which it is placed. And generally the 
thing, thus subject to seizure, itself furnishes the evidence for its own 
condemnation. Thus, goods found smuggled, not having been subjected 
to the inspection of the officers of the customs, or paid the duties levied by 
law, prove of themselves nearly all that is desired to establish the right 
of the government to demand their confiscation. A ship entering the 
mouth of a blockaded port furnishes by its position evidence of its intention 
to break the blockade, and the decree of condemnation follows. A ship 
captured whilst engaged in the slave-trade furnishes, in the use to which it 
was subjected, the material fact to be established for its forfeiture. In all 
these cases the proceeding is against the offending thing. And it is true 
that in these cases criminal proceedings will also lie against the smuggler 
or slave-trader, if arrested, and that the procedings in rem are wholly inde- 
pendent of. and unaffected by, the criminal proceedings against the person. 
But in the two cases the proof is entirely different. In the one case there 
must be proof that the thing proceeded against was subjected to some 
unlawful use or was fouud in some irulawful condition. In the other case 
the personal guilt of the party must be established, and when condemna- 
tion is founded ui^on such guilt, it must be preceded by due conviction 
of the offender, according to the forms prescribed by the Constitution. 
' Confiscations of property,' says Mr. Justice Sprague in the Amy War- 
wick,^-' ■ not for any use that has been made of it, which go not against an 
offending thing, but are inflicted for the personal delinquency of the 
owner are punitive, and punishment should be inflicted only upon due 
conviction of personal guilt.' 

" If we examine the cases found in the reports, where proceedings in 
rem have been sustained, we shall find the distinction here stated con- 
stantly observed. Indeed, were this not so, and proceedings in rem 
for the confiscation of property could be sustained, without any reference 
to the uses to which the property is applied, or the condition in which it is 
found, but whilst, so to speak, it is innocent and passive, and removed 
at a distance from the owner and the sphere of his action, on the ground 
of the personal guilt of the owner, all the safeguards provided by the Con- 
stitution for the protection of the citizen against punishment, without pre- 
vious trial and conviction, and after being confronted by the witnesses 
against him, would be broken doAvn and swept away." — (11 Wall., 319- 
323.) 

The court havins: adjudged that the statute, in author- 
izing suits in rem for the confiscation of the property of 
persons alleged to have heen guilty of certain overt acts 
of treason, was valid, proceedings under it were sustained, 
which, though taken ostensihly in the interest of the 
United States, were in many instances prosecuted for the 

*Sprague's Decisions, 2nd vol., 150. 



lionotit of [liirtios connected with tlie coni't in whicli thoj 
Were luid, or llieir iumiediate relatives or tViends, A de- 
l»loi':dile instance of the kind is stated in the opinion of 
tiie Court of Appeals in Virginia, in the case of Under- 
wood V8. McVeigh.— (23 Grattan, 4()!».) There the dis- 
trict judge ordered the appearance of the owner of tlie 
property seized, and his answer and claim to he stricken 
from the files of the court, hecause he was in the position 
of an alien enemy; and thereu[)i)n adjudged that the prop- 
erty he confiscated and forteited to the Tnited States. 
At the sale mider the decree thus rendered, the wife of 
tlie judge became the purchaser of the pnipcrty at a price 
greatly below its value. Some evidence of the abuses 
])racticed under the statute will also be found in the opinion 
of the Supreme Court in McVeigh vs. AVindsor (11 Wall., 
259) ; Osborn vs. United States (91 U. S.,475) ; and Wind- 
sor vs. McVeigh (93 U. S., 274). 

The owners of the property seized did not often appear in 
the suits, usually not having information of the proceedings 
until after a decree of condemnation had passed, and the 
property had been sold. Persons immediately connected 
with the court, where these suits were prosecuted, were in a 
position to take great advantage of the government, and 
that they availed themselves of the opportunity, the rec- 
ords of the courts abundantly show. A distinguished 
mend)er of the profession at the South, formerly on the 
Supreme Bench (Judge Campbell), who had (Occasion to 
look a good deal into these proceedings, has stated that 
the statute as a financial expedient was abortive, only about 
1150,000 having been realized from the confiscation de- 
crees of the courts, and most of that sum after the war 
had nearly or quite ended. And he thinks that President 
Lincoln, in insisting upon the explanatory resolution be- 
fore signing the act, must have agreed with one of the 
greatest of statesmen, " that speculative plunder, contin- 
gent spoil, future, long-adjourned, uncertain bootj^, pillage 
to supply troops and sustain armies, would not serve to 



58 

maintain even a mercenary war ; " and have regarded the 
act — comprehending as it did in its scops nine-tenths of 
the property and white persons within the hmits of the 
Confederate States — as a mere hrutumfulmen, whicli, if not 
availahle as such, it was not worthy an enhglitened and 
civihzed people to enforce in spirit or detail. 

In Conrad vs. Wafles (9(3 LI. S., 279) the court held 
that the act, in its provisions for the confiscation of pro[)- 
erty, applied only to the property of persons who there- 
after might 1)6 guilty of acts of disloyalty and treason ; 
that sales and conveyances between enemies of real 
property in the enemies' country passed the title, sub- 
ject only to be defeated if the government should after- 
wards proceed for its condemnation; and that the pro- 
vision of the act declaring all transfers of pi-opci-t}' by 
enemies null and void only invalidated the transactions 
as against the right of the United States to claim the for- 
feiture of the property, affirming in this respect the de- 
cision in Corbett vs. Nutt, cited above. In giving its 
opinion Judge Field said : 

"A differeut doctrine would unsettle a multituds of titles passed dur- 
ing the war between residents of the insurrectionary territory, tempo- 
rarily absent therefrom whilst it was dominated b}- the federal forces. 
Such residents were deemed enemies by the mere fact of being inhab- 
itants of that territory, without reference to any hostile disposition man- 
ifested or hostile acts committed by them. In numerous instances, also, 
transfers of property were made in loyal States, bordering on the line of 
actual hostilities, by parties who had left those States and joined the in- 
surgents. This was particularly tlie case in Missouri and Kentucky. No 
principle of public policy would-be advanced, or principle of public law 
sustained, by holding such transfers absolutely void, instead of being 
merely inoperative as against the right of the United States to appropri- 
ate the property j«re belli: on the contrary, such a holding would create 
unnecessary hardship, and therefore add a uew cruelty to the war." 

In Burbank vs. Conrad (9(3 U. S., 291) the court held 
that by the decree of condemnation under the act, the 
United States acquired only the life-estate of the alleged 
offender, actually possessed by him at the time of its seizure, 
not the estate which the records in the register's office may 
have shown to be in him. Accordingly a previous sale 



59 

was not affected, altliouii'li not recorded. On this point 
.Indge Field, in speaking for the court, said : 

■'Tlu' object of recxuiring ;i i)iihlic ivcord of instruments affecting the 
title to real property is to proteet third parties dealing with the vendor, 
by impiirting notice to theiu of any previous sale or hypothecation of the 
])n)i)iTty. and to protect the purchaser against any subsetiueut attempted 
disposition of it. In Louisiana the conveyance is valid between the par- 
ties without registration and passes the title. The only consequence of a 
failure of the purchaser to place his conveyance on the records of the par- 
ish where the ijroperty is situated, is that he is there))y sul>jected to the 
risk of losing the property if it be again sold or hypothecated by his 
vendor to an innocent third ])arty ; or if it be seized and sold by a cred- 
itor of his vendor for the latter's debts. The second purchaser from the 
vendor and the bidder at the judicial sale would in that case hold the 
proi)erty. The United States never stood in the position of a second pur- 
chaser of the property sold by the elder Conrad. They were not pur- 
chasers at any sale of his property. They had caused his estate in the 
land, whatever that was, to be seized and condemned. By the decree of 
condemnation that estate vested in them for the period of his life. His 
estate for that period was then their property. The statute declares that 
the property condemned ' shall become the property of the United States, 
and may be disposed of as the court shall decree.' It was the property 
of the United States, therefore, which was sold and conveyed at the mar- 
shal's sale. The United States acquired by the decree, for the life of the 
offender, only the estate which at the ^time of the seizure he actually 
possessed ; not what he may have appeared from the public records to 
possess, bj^ reason of the omission of his vendees to record the act of sale 
to them ; and that estate, whatever it was, for that period passed by the 
marshal's sale and deed ; nothing more and nothing less. The registry 
act was not intended to protect the United States in the exercise of their 
power of confiscation from the consequences of previous unrecorded sales 
of the alleged offender. It was in the power of Congress to provide for 
the confiscation of the entire property, as being within the enemy's coun- 
try, without limiting it to the estate remaining in the offender ; but not 
having done so, the court cannot enlarge the operation of the stringent 
provisions of the statute. The plaintiff had notice of the character and 
legal effect of the decree of condemnation when he purcha.sed, and is 
therefore presumed to have known that if the alleged offender possessed 
no estate in the premises at the time of their seizure, nothing passed to 
the United States by the decree, or to him by his purcha.se." 

Cases on Pardon and Amnesty. 

In his great speecli on coneiHation witli America, Burke 
observed, what all nmst admit to be true, " that there is a 



60 

wide dift'erenee in reason and policy between the mode of 
proceeding' on the irregular conduct of scattered indi- 
viduals, or even of bands of men who disturb order within 
the State, and the civil dissensions which may, from time 
to time, on great questions, agitate the several connnunities 
which compose a great empire;" and said that it looked to 
him to be narrow and pedantic to apply the ordinary ideas 
of criminal justice to the great public contest then going 
on in America ; and that he did not know the method of 
drawing up an indictment against a whole people. 

This language must hove occurred to the belligerents in 
the late civil war. And yet the Constitution declares that 
" treason against the United States shall consist only in 
levying war against them, or in adhering to their enemies, 
giving them aid and comfort." The people of the Con- 
federate States, in making war against the United States, 
came within the terms of this definition, however unwise 
and monstrous the proposition, that under it they were all 
exposed to criminal prosecution. The attempt to pass 
sentence upon them as a people w^ould, as Burke said, be 
a proceeding " for wise men, not judicious; for sober men, 
not decent; for minds tinctured with humanity, not mild 
and merciful." But under the legislation of Congress and 
of several of the States, it was of the highest moment to 
many of these people, that they should be relieved from 
the disabilities to which their participation in the rebellion 
subjected them ; and that could only be accomplished, 
whilst that legislation remained in force, by pardon or 
amnesty. The term amnesty is not found in the Constitu- 
tion, but is generally used to denote the clemency ex- 
tended to a whole community or to a class of persons. 
Pardon is the generic term and includes every species of 
executive clemency, individual or general, conditional or 
absolute. 

The first case after the war, in which the Supreme Court 
had occasion to speak of the effect and operation of a 
pardon, was that of Garland, who was precluded, as stated 



Icssioii 


ns [ 


Ill 


e c 


Olll 


;-i,l 


)y 


net 


of 


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11- 


vvhv 


lli( 


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oi- 


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in 


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HI 

ahove, from contimiini;" ilio in'actiee of his piv 
atloTiu'V and rounscllor-at-law in the Siiprci 
his inabiHty to hike the .)ath rcMiiiiivd l»_v \\\( 
UTOss, tliat he hail novel- [)aiii('i[iat(Ml in the 
given it aid and comfort, .lud^'e Field, spea 
case for the court, said : 

"The Constitution provides that the President ' shall have power to 
<;nint reprieves and xxirdons lor oftences against the United States, except 
in eases of impeachment.' 

"The power thus conlerred is unlimited, with the exception stated. 
It extends to every oft'ence known to the law, and may be exercised at 
any time after its commission, either before legal proceedings are taken 
or during their pendency, or after conviction and judgment. This power 
of the President is not subject to legislative control. Congress can nei- 
ther limit the effect of his pardon nor exclude from its exercise any class 
of offenders. The benign prerogative of mercy reposed in him (;annot be 
fettered by any legislative restrictions. 

"Such being the case, the inquiry arises as to the effect and operation 
of a pardon, and on this point all the authorities conciir. A pardon 
reaches both the punishment prescribed for the offence and the guilt of 
the offender; and when the pardon is full, it releases the punishment and 
blots out of existence the guilt, so that in the eye of the law the offender 
is as innocent as if he had never committed the offence. If granted be- 
fore conviction, it prevents any of the penalties and disabilities conse- 
(luent upon conviction from attaching ; if granted after conviction, it re- 
moves the penalties and disabilities, and restores him to all his civil 
rights ; it makes him, as it were, a new man, and gives him a new credit 
and capacity. 

" There is only this limitation to its operation : it does not restore of- 
lices forfeited, or property or interests vested in others in consequence of 
the conviction and judgment. 

"The pardon produced by the petitioner is a full pardon "for all of- 
fences by him committed, arising from participation, direct or implied, 
in the rebellion,' and is subject to certain conditions which have been 
complied with. The effect of this pardon is to relieve the petitioner 
from all penalties and disabilities attached t6 the offence of treason, 
committed by his participation in the rebellion. So tar as that offence is 
concerned, he is thus placed beyond the reach of punishment of any kind." 
—(4 Wall., 380-381.) 

In several cases subsequently before the court, on ap- 
peal from the Court of Claims, which were brouc:ht for 
tlie recovery of the proceeds of cotton seized by officers 
of the United States under the captured and abandoned 



62 

property act of March 12tli; 1863, tlie doctrine of the 
Garland case was followed and applied, so as to relieve 
the petitioners from the necessity of showing that they 
had never given any aid or comfort to the rebellion, which 
otherwise would have been required under the act. 

In Paddleford's case, (9 Wall., 531,) the petitioner hav- 
ing taken the oath of allegiance prescribed by tlie procla- 
mation of President Lincohi, of December 8th, 1863, and 
kept it inviohite, it was held, that he was entitled to claim 
the proceeds of cotton subsequently seized and sold under 
that act. The court cited the language in the Garland 
case as to the effect of a pardon, that by it " in the eye of 
the law the otfender is as innocent as if he had never com- 
mitted the offence." The pardon had purged him of tlie 
offence when the seizure was made. In the words of the 
Chief Justice, who gave the opinion of the court, " tlie 
law made the grant of pardon a comjilete substitute for 
proof that he gave no aid or cc^mfort to tlie rebellion." 

In Klein's case, (13 Wall., 129,) subsequently before 
the court, an act of Congress, which undertook to do away 
with this efiect and operation of a pardon, was brought to 
its notice. That act declared that a pardon should not su- 
persede the necessity of proof of loyalty by its recipient, 
but that its acceptance, without an express disclaimer and 
protestation, should be conclusive evidence of his guilt of 
the acts pardoned, and be inoperative as evidence of the 
rights whicli the court had adjudged were conferred by 
it. The C(Hirt, to its great honor, held the act to be uncon- 
stitutional — an attempt t() prescribe to the judiciary the 
effect to be given to the previous pardon of the President. 
The Chief Justice, in giving its opinion, said: "It is clear 
that the legislature cannot change the effect of such a 
jiardon any more than the executive can change a law. 
Yet this is attempted by the provision under consideration. 
The court is required to receive special pardons as evi- 
dence of guilt and U) treat them as null and void. It is 
required to disregard pardons granted by proclamation on 



en 

condition, though tlu' condition has l.ccn rulllllcd, niid io 
deny tlicni tlicir leu-al ctlcct. This ccrtaiidv inijiairs tlic 
oxcrutivc anthoritv, and directs tlic conrt to hi' instru- 
mental t.) that end." 

Tn Mrs. .\rnistn.n,u-"s case, (1:5 Walh, l.')4,) wiiich was 
heard alter the (k'cision in Klein's case, tlie coiul declined 
to consider whether tlie evidence was sullicient to pi-ove 
tliat tlie claimant had ii-iven aid and comfort to the rid»el- 
lion, and held that the ])roc]amation of i»ai'don and am- 
nesty issued hy the President entitled her to the proi-eeds 
of her captured and abandoned property in tlie Treasury, 
without proof that slie never <j:;ave such aid and cond'ort. 
The Chief Justice, in deliverinii' tlie opinion of the court, 
oi)serve(l that the proclamation granting pardon, nncon- 
ditionally and without reservation, " was a ptibhc act of 
which all courts of the United States are bound to take 
notice, and to which all courts are homid to give effect," 

Subsequently, at the December term, 1872, in Carlisle 
vs. The I'nited States, the question again arose as to the 
effect of the proclamation of pardon and amnesty made 
by the President, December 25th, 1868, upon the rights of 
parties who had given aid and comfort to the reliellion, 
and were claiming the proceeds of cotton seized by the 
officers of the United States and turned over to the agents 
of the Treasury Department; and the court said, s[)eaking 
through Judge Fiehl : 

" Assuming that they [the claimants] are within the terms of the 
proclamation, the pardon and amnesty granted i-elieve them from the 
legal consequences of their participation in the rebellion, and from the 
necessity of proving that they had not thus participated, which other- 
wise would have been indispensable to a recovery. It is true, the pardon 
and amnesty do not and cannot alter the fact that aid and comfort were 
given by the claimants, hut they forever close the eyes of the court to the per- 
ception of that fact as an element in its Judgment, no rights of third parties 
having intervened." 

In Osliorn vs. Tlie United States, decided at the Octo- 
ber term, 1875, (91 U. S., 474,) the question was as 
to the effect of the President's pardon upon the rights 



of the petitioner to the proceeds of his property confis- 
cated by the decree of the District Court. The Circuit 
Court — Judge Miller presiding — was of opinion that, 
subject to the exceptions specified therein, the pardon 
restored all rights of property lost by the ofience pardoned, 
unless the property had by judicial process become vested 
in other persons; and that the proceeds of property con- 
fiscated, paid into court, were under its control until an 
order for their distribution was made, or they were paid 
into the hands of the informer entitled to receive them, or 
into the Treasury of the United States; and that until then 
no vested right to the proceeds had accrued so as to pre- 
vent the pardon from restoring them to the petitioner. This 
ruHng was assailed by oificers of the District Court, who 
were called upon to make restitution of a portion of the 
proceeds they had obtained. But the Supreme Court, in 
afiarming it, speaking through Judge Field, replied as 
follows : 

" It is uot a matter for these officers to complain that proceeds of prop- 
erty adjudged forfeited to the United States are held subject to the further 
disposition of the court, aud possible restitution to the original owner. 
That is a matter which concerns only the United States, and they have 
not seen fit to object to the decision. But independently of this con- 
sideration we are clear that the decision was correct. The pardon, as is 
seen, embraces all offences arising from participation of the petitioner, 
direct or indirect, in the rebellion. It covers, therefore, the offences for 
which the forfeiture of his property was decreed. The confiscation law 
of 1862, though construed to apply only to public enemies, is limited to 
such of them as were engaged in and gave aid and comfort to the rebel- 
lion. The pardon of that offence necessarily carried with it the release 
of the penalty attached to its commission, so far as such release was in 
the power of the government, unless specially restrained by exceptions 
embraced in the instrument itself It is of the very essence of a pardon 
that it releases the offender from the consequences of his offence. If in 
the proceedings to establish his culpability and enforce the penalty, and 
before the grant of the pardon, the rights of others than the government 
have vested, those rights cannot be impaired by the pardon. The gov- 
ernment having parted with its power over such rights, they necessarily 
remain as they existed previously to the grant of the pardon. The gov- 
ernment can only release what it holds. But unless rights of others in 
the property condemned have accrued, the penalty of forfeiture annexed 



(i.) 

to the commission ol'tlie otFem;e miisl lall wilh tlic pardon of tlio oftencc 
itself", provided the full operation of the i>ai<loii he not restrained by tlie 
conditions upon which it is granted."' 

In Knote VS. United States, (!).-) IT. S., i:)4,) heard at 
the" OctohcT term, 1.S77, the ([lU'stion \va> wlietlier tlic 
pardon and aniiK'sty i^'raiitod liy Ihe I'rt'sidi'nt's procla- 
niation entitled one, who had reeeived its henetits, to the 
proceeds of liis property prt'\ionsl_v ('on(hMnned and sold 
tnider the contiscation act, alter sncli proceeds had heen 
paid into the Treasurj-. Ami n[»on this suhjei-t. .ludij^e 
Field, speaking' for the court, said : 

" Moneys once in the Treasury can only be withdrawn by an appropri- 
ation by law. However large, therefore, may l)e the power of pardon 
l)ossessed by the President, and however extended may be its application, 
there is this limit to it, as there is to all his powers : it cannot touch 
moneys iu the Treasury of the United States, except expressly authorized 
J)y act of Congress. The Constitution places this restriction upon the 
pardoning power. 

" ^yhere. however, property condemned, or its proceeds, have not thus 
vested, but remain under control of the executive or of otHcers subject to 
his orders, or are in the custody of the j udicial tribunals, the property will 
be restored or its proceeds delivered to the original owner upon his full 
pardon. The property and the proceeds are not considered as so absolutely 
vesting in third parties or in the United States as to be unaffected by the 
pardon until they have passed out of the jurisdiction of the officer or 
tribunal. The proceeds have thus passed when paid over to the indi- 
vidual entitled to them, in the one case, or are covered into the Treasury, 
in the other."' 



LE(iAL-TENDER (A\SES AND CoXFEDER.VrE XOTES. 

Next to the questions relating to reconstruction, test-oaths, 
pardon, and amnesty, those relating to the notes issued hy 
the government to be used as a circulating medium, excited, 
after the war, the greatest interest. On the 25th of Feb- 
ruary, 1862, the President approved of an act of Congress 
entitled "An act to authorize the issue of United States 
notes, and for the redemption or funding thereof, and for 
fimding the floating debt of the United States," commonly 
known as the legal-tender act.- -(12 Stats., 345.) 
5 



It authorized the Secretary of the Treasniy to issue notes 
on the credit of the United States to the amount of one 
hundred and fiftj' millions, not drawing interest, payable 
to bearer, of such denominations as he might deem expe- 
dient, not less than five dollars each. And it declared 
that such notes should be " receivable in payment of all 
taxes, internal duties, excises, debts, and demands of every 
kind due to the United States, except duties on imports, 
and of all claims and demands against the United States 
of every kind whatsoever, except for interest upon bonds 
and notes," which was to be paid in coin, and be " lawful 
money and a legal tender in payment of all debts, public 
and private, within the United States, except duties on im- 
ports and interest as aforesaid." 

IS'o serious question was ever raised as to the power of 
the government to issue the notes as a means of borrow- 
ing money, or to make them payal^le to bearer, and of 
such denominations as would suit the convenience of the 
lender, or to make them receivable for dues to tlie United 
States. The only objection to the act was the provision 
making them "a legal tender in payment of all debts pub- 
lic and private," so far as it applied to private debts and 
debts owing by the United States. 

As Congress could only exercise such powers as were 
expressly delegated to it, or were necessary and proper to 
the execution of those powers, and as it was not expressly 
invested with control over the subject of legal tender, and 
the States were prohibited in terms from making anything 
but gold and silver such tender, the validity of the pro- 
vision, so far as it applied to private debts, was at once 
raised. The question was one of immediate and pressing 
importance, not only from the fact that the amount 
authorized by the act mentioned was issued, but by sub- 
sequent acts, containing a similar provision, the issue of a 
much larger amount was authorized, and in denominations 
as low as one dollar. These notes, not being convertible 
on demand into coin, soon depreciated in value in the 



iu 

iiiai'kc't, so at times diiriui;- tin- wai' llicv were til'lv cents 
below par, and loni;- after the war their [uireliasaljle jiower 
was greatly less tliau their noiiiiual amount. ITnserupu- 
lous debtors at once seized the occasion to discliarii-e their 
previous ol)liii'ations by these notes, tlius [>ayinu- tiieir 
(•reditors nominally the whole, hut in fact oidy a ]K)rtion, 
of their dues. The great corporations of the eountry, 
whieli had contracted a large indebtedness prior to the 
war, did not hesitate to offer to their creditors, these notes, 
Itoth for the interest and principal of their bonds. They 
measured their sense of justice, not by the rules of com- 
mon honesty, but by what the law permitted. 

In the case of Lane (''ounty vs. Oregon (7 Wall., 72) an 
attempt was made to compel the otRcials of that State to 
receive these notes for taxes in the face of legislation re- 
quiring such taxes to be paid in gold aud silver. But the 
Supreme Court held that taxes were not debts within the 
meaning of the legal-tender act, and that by the term 
debts were meant only such obligations for the payment of 
money as were founded upon contract, citing and following 
in this respect the opinion of Judge Field, given by him 
when on the bench of the Supreme Court of C^alifornia, in 
l^erry vs Washburn (20 Cal., 818). 

The Chief Justice, who spoke for the court in the case, 
referred to the power of taxation in the general govern- 
ment conferred b}' the Constitution, and to its limitations. 
He also mentioned the restrictions upon the States to tax 
exports or imports except for a single purpose, or to lay 
any duty on tonnage, and then added : 

"lu respect, however, to property, Ijusiness, uiid persons. Avittiin tlieir 
respective limits, their power of taxation remained and remains entire. 
It is, indeed, a concurrent power, and in the case of a tax on tlie same 
subject by both governments, the claim of the United States, as the su- 
preme authority, must be preferred ; but, with this qualification, it is 
absolute. The extent to which it shall be exercised, the subjects upon 
which it shall be exercised, and the mode in which it shall be exercised, 
are all equally within the discretion of the Legislatures, to which the 
States commit the exercise of the power. That discretion is restrained 



68 

only by the will of the people expressed in the State constitutions or 
through elections, and by the condition that it must not be so used as to 
burden or embarrass the operations of the national government.* There 
is nothing in the Constitution which contemplates or authorizes any di- 
rect abridgment of this power by national legislation. To the extent 
just indicated, it is as complete in the States as the like power, within 
the limits of the Constitution, is complete in Congress. If, therefore, the 
condition of any State, in the judgment of its Legislature, requires the 
collection of taxes in kind — that is to say, by the delivery to the proper 
officers of a certain i^roportion of products, or in gold and silver bullion, 
or in gold and silver coin — it is not easy to see upon what principle the'^ 
National Legislature can interfere with the exercise, to that end, of this 
power, original in the States, and never as yet surrendered." 

In Bronson vs. Rodes (7 AVall., 229) the question was 
raised whether a previous contract for the payment of a 
certain sum in gold and silver coin could be specifically en- 
forced, or whether it could be discharged, under the legal- 
tender act, by a tender of treasury notes. The court held 
that the contract could be specifically enforced. It is diffi- 
cult, at this day, to appreciate fully the earnestness of the 
opposition to this position. The fact that the law recog- 
nized two dift'erent kinds of currency, and that one only 
could be used for a certain class of pajanents — that is, for 
duties on imports — would seem to be a conclusive answer 
to the objections urged. As two kinds of currency were 
made lawful, a contract for either must be lawful also. A 
person might wish coin to remit abroad or to pay duties, 
or because it could be more safely kept at his residence, 
not being liable to be destroyed by fire or injured by water 
or other casualties. As the Chief Justice, who gave tlie 
opinion of the court, said : 

" The currency acts themselves provide for payments in coin. Duties 
on imports must be paid in coin, and interest on the public debt, in the 
absence of other express provisions, must also be paid in coin. And it 
hardly requires argument to prove that these positive requirements can- 
not be fulfilled if contracts between Individuals to pay coin dollars can 
be satisfied by offers to pay their nominal equivalent in note dollars. 

* Or, it may be added, to impose greater burdens upon the business or 
property in the State of non-resident, than upon the business or property 
of resident citizens. — (Ward vs. Maryland, 12 Wall., 418.) 



6D • 

The merchant who is to pay duties in coin must contract for the coin 
which he requires ; the bank which receives the coin on deposit contracts 
to repay coin on demand ; the messenj^er wlio is sent to the bank or the 
custom-house contracts to pay or deliver the coin according to his in- 
structions. These are all contracts, eitiun- ex))rcss or implied, to pay 
coin. Is it not plain that duties cannot be jiaid in coin il' these contracts 
cannot be enforced ? 

"An instructive illustration may be derived tVom another provision of 
the same acts. It is e.xpressly provided that all dues to the government, 
except for duties on imports, may be paid in United States notes. If, 
then, the government, needing more coin than can be collected from du- 
ties, contracts with some bank or individual for the needed amount, to 
be paid at a certain day, can this contra(!t for coin be perlbrmed by the 
tender of an equal amount in note dollars? Assuredly it may if the 
note dollars are a legal tender to the government lor all dues except 
duties on imports. And yet a construction which will support such a 
tender will defeat a very important intent of the act. 

" Another illustration, not less instructive, may be found in the con- 
tracts of the government Avith depositors of bullion at the mint to pay 
them the ascertained value of their deposits in coin. These are demands 
against the government other than for interest ou the public de1)t ; and 
the letter of the acts certainly makes United States notes payable for all 
demands against the government except such interest. But can any such 
construction of the act be maintained? Can judicial sanction be given 
to the proposition that the government may discharge its obligation to 
the depositors of bullion by tendering them a number of note dollars 
equal to the number of gold or silver dollars which it has contracted b}'^ 
law to pay ? 

" But we need not pursue the subject further. It seems to us clear 
beyond controversy that the act must receive the reasonable construction, 
not onlj^ warranted, but required, by the comparison of its provisions 
with the provisions of other acts, and with each other, and that upon 
such reasonable construction it must be held to sustain the proposition 
that express contracts to pay coined dollars can only be satisfied by the 
payment of coined dollars." 

The Confederate States also issued tbeii- notes, to be 
used as ciiyrency, but, unlike our governnient, tliey did 
not make them a legal tender. Contracts at the South 
during the war had reference generall}^ to these notes 
when dollars were mentioned. After the war, suits 
being brought upon many of these contracts, the ques- 
tion was raised as to the meaning to be attached to 
the term " dollars " used in them. On the one hand, it 



70 

was said, and correctly, that by " dollars," as defined in 
the statutes, were meant pieces of gold and silver coin of a 
prescribed fineness and weight, each bearing the stamp of 
the United States, expressive of its value. On the other 
hand, it was manifest that there would be great injustice 
in giving this meaning to the term, when by it only Con- 
federate notes were intended. As well might it be claimed 
that to contracts made in Germany, where the term " dol- 
lars " is used, a similar construction should be given when 
the contracts are sought to be enforced in this country, 
although the German dollar is worth only sixty-nine cents 
of our dollar. 

In Thorington vs. Smith, (8 Wall., 1,) wdiich was be- 
fore the court at the December term of 1868, this question 
was presented. In that case a tract of land in Alabama 
had been sold in 1864 by the plaintiff, Thorington, to the 
defendants for |45,000, of which $35,000 were paid, and 
for the residue a promissory note of the purchasers was 
o-iven. Upon the suppression of the rebellion, Confeder- 
ate notes became, of course, valueless, and, in 1867, Thor- 
ington filed a 1)111 against the purchasers for the enforce- 
ment of his lien as vendor, claiming $10,000 in the only 
money then current, that of the United States. The de- 
fendants answered that at the time of the purchase Ala- 
bama was one of the Confederate States, and from that por- 
tion where the parties resided, and the contract was made, 
the authority of the United States was excluded ; that 
there was no gold or silver coin nor were any notes of the 
United States in circulation there ; that the only currency 
in use for the ordinary transactions of business consisted 
of Confederate notes ; that the land purchased was worth 
only $3,000 in lawful money of the United States ; that 
the contract was to be paid, by agreement of parties, in 
Confederate notes, of which $35,000 were thus paid, and 
that the balance w^as to be discharged in the same way. 
It was, therefore, insisted, upon this state of facts, that the 
plaintitt" was not entitled to any relief. The court below, 



71 

behiii; of opinion that tlu> coiitrart was illc^-al lu'causc [»ay- 
ahk' in those noti's, tlisinissi';! the hill, hut the Siiprenie 
Court reversed the deu'ision, holding that the (^)nlV'd^'rate 
States had established a government of jiai'aniount loi'ce 
over the States of the Confederacy, and that hy its au- 
thority their notes were placed in circulation and hccanic 
ahnost exchisively the currency of those States ; that con- 
tracts pa.yal)le in them could not for that reason In' i-e- 
garded as made in aid of the insurrection ; that they had 
no necessary relations to the insui-gent government, hut 
were transactions in the ordinary course of civil society, 
and were without blame, except when proved to have been 
entered into with actual intent to further the rebellion. 
The court also held that evidence of the character and 
value of this currency was competent and admissible. 
Upon this latter point the court, speaking through the 
Chief Justice, said : 

'• It is quite clear that a contract to pay dollars, made between citizens 
of any State of the Union, while maintaining its constitutional relations 
with the national government, is a contract to pay lawful money of the 
United States, and cannot be modified or explained by parol evidence. 
But it is equally clear, if in any other country, coins or notes denomi- 
nated dollars should be authorized of dift'erent value from the coins or 
notes which are current here under that name, that in a suit upon a con- 
tract to pay dollars, made in that country, evidence would be admitted 
to prove what kind of dollars were intended, and if it should turu out 
that foreign dollars were meant, to prove their equivalent value in lawful 
money of the United States. Such evidence does not modify or alter the 
contract. It simply explains an ambiguity, which, under the general 
rules of evidence, may be removed by parol evidence." 

It was accordingly adjudged that the vendor could re- 
cover only the actual value of the Confederate notes at 
the time and place of the contract, in lawful money of the 
United States. 

At the December term of 1872, in Hanauer vs. Wood- 
rutf, this case was cited, and in reference to the alleged 
illegality of the contract, because made in Confederate 
currency, Judge Field, speaking for the court, said : 



" The transaction was in a currency imposed by irresistible force upon 
the community, in which currency the commonest transactions in the 
daily life of millions of people, even in the minutest particulars, were 
carried on, and without the use of which there would have been no me- 
dium of exchange among them. The simplest purchase in the market of 
daily food would, without its use, have been attended with inconveniences 
which it is difficult to estimate. It would have been a cruel and oppres- 
sive judgment, if all the transactions of the many millions of people, 
composing the inhabitants of the insurrectionary States, for the several 
years of the war, had been held tainted with illegality because of the use 
of this forced currency, when those transactions were not made with any 
reference to the insurrectionary government." — (15 AValL, 448. See, also, 
the Confederate note case, 19 Wall., 555.) 

Tlie constitutionality of the legal-tender clause of the act 
of Congress was discussed in Lane County vs. Oregon, 
Bronson vs. Rodes, and in other cases before the court, 
but they either went oti" on some other point, or their de- 
cision was reserved until judgment should he rendered in 
Hepburn vs. Griswold, wdiere the question was directly 
presented and could not be avoided. That case, which was 
before the court both at the December term of 1868, and 
the December term of 1869, was elaborately argued, first on 
briefs and then orally, by counsel of eminent ability, and 
it was long held under advisement. Indeed it was after- 
wards said by some of tlie judges that no case before the 
court since its organization had been more fully pre- 
sented or more deliberately considered. The question was 
whether the holder of a note payable in dollars, made be- 
fore the legal-tender act was passed, was obhged in law to 
accept in payment United States notes, equal in. nominal 
amount to the sum due, when tendered by the maker ; or 
in other words, whether debts contracted previous to the 
legal-tender act could be discharged, against the consent 
of the holder, by legal-tender notes. The presentation of 
the question placed the Chief Justice in a very embarrass- 
ing position. The provision assailed had been recom- 
mended by him when Secretary of the Treasury, though 
with much doubt and hesitation. It did not, however 
meet the approval of all the lawyers of the Senate. 



Some of the ablest of tliom, like ('oll;niu>r and FcssciuU'ii, 
oppost'd il as liolli iiiuu'ccssary and unconstiliitioiial. But 
as tlic war c-oiitimu'd. and inimeiisc dralts wrw made upon 
tlie Treasm-y, the validity of the [)rovision was o-enerally 
a^•(lui eseed in as a matter of necessity. So w hen the ques- 
tion came before the court for adjudication a- laru'e portion 
of the peopU' had come to believe in its constitutionality, 
and several supreme courts in ihe loyal States had pro- 
nounced in its favor. In adilitioii to all this, three of the 
judges expressed themselves stronu'ly on the subject as 
having no doubt whatever of the validity of the [trovision, 
A regard for consistency urged him to concur with their 
views. His mind was sorely perplexed, and the ((uestion 
was examined and re-examined by him with painful anx- 
iety. But his sense of duty prevailed. He could not l)e 
false to Ids convictions as a judge in order to preserve his 
consistency as a statesman. He pronounced against the 
vahdity of the provisioii and read the opinion of the court. 
That opinion is well known to the country. It presents 
the unconstitutionality of the provision in the clearest 
light. In it he alludes to his own change of views on the 
question, as follows : 

" It is not surprising that amid the tumult of the late civil war, and 
under the influence of apprehensions for the safety of the Eepuhlic, almost 
universal, different views, never before entertained by American states- 
men or jurists, were adopted by many. The time was not favorable to 
considerate reflection upon the constitutional limits of legislative or ex- 
ecutive authority. If power was assumed from patriotic motives, the as- 
sumption found ready justification in patriotic hearts. Many who 
doubted yielded their doubts; many who did not doubt were silent. 
Some who were strongly averse to making government notes a legal ten- 
der felt themselves constrained to acquiesce in the views of the advocates 
of the measure. Not a few who then insisted upon its necessity, or ac- 
quiesced in that view, have, since the return of peace, and under the in- 
fluence of the calmer time, reconsidered their conclusions, and now con- 
cur in those which we have just announced." — (8 AVall., 6"25.) 

The views of the Chief Justice, as well as the action of 
the court, in the several cases under the legal-tender act, 



74 

have been fully stated, because they had the entire con- 
currence and earnest support of Judge Field, and because 
of wbat subsequently occurred to bring about a reconsid- 
eration of the question decided and a reversal of the judg- 
ment of the court. Tbe Judge had frequent consultations 
upon the queotions raised with the Chief Justice, who 
never hesitated to express in strong terms his appreciation 
V of the Judge's counsel. 

The decision was received by the country, excepting 
• the debtor class, with favor. Many who did not object 
to the application of the act to future contracts were re- 
joiced that the injustice, likely to attend its application to 
past contracts, was prevented. As to future contracts, 
they said, parties acted with the law before them. But 
y from the debtor class, and especially the large corporations 
of the country, the greater part of whose liabilities had 
been created before the war, the decision met with decided 
hostility. A movement was at once set on foot to obtain 
its reversal. The legislation of Congress, suggested by 
the court in the hope that it might to some degree be re- 
lieved of the great pressure of labor upon it, favored this 
movement. In the winter of 1869 members of the Ju- 
diciary Committee of the Senate informed the court that 
they would be glad to receive from it suggestions for 
changes in the judicial system with a view to facilitate 
the discharge of its business. The members of the coui't 
thereupon met and appointe.l Judges Miller and Field a 
committee to consider the subject and report what changes 
should be recommended. They suggested a bill for the 
appointment of independent circuit judges. The sugges- 
tion was favorably received, and a bill for that purpose was 
prepared by them, and, after some verbal changes, was 
approved by the judges and sent to the Judiciary Com- 
mittee of the Senate. It was then reported by Senator 
Trumbull from that committee, with some slight changes, 
and was soon after passed by both Houses. President 
Johnson refused to sign it, but after Gen. Grant became 



President it was again introduced into the Senate and was 
soon passed, to take effect on the 1st of December, 18G9. 
It increased the number of judges of tlie Supreme Court 
to nine, thus necessitating the appointment of a new mem- 
ber, and created nine independent circuit judges. As the 
court then consisted of onl}^ eight judges, it was neces- 
sary, to obtain a niajority in favor of the legal-tender 
provision, that two new judges should be appointed who 
would agree with the three who had opposed the late 
decision. It was, therefore, suggested that the physical 
infirmities of Judge Grier were sucb that he should re- 
tire. At that time he was unable to walk without assist- 
ance from others, and he was accompanied by his servant 
itito the court-room whenever he took his seat on the 
bench. Owing to the frequent comments in the public 
journals upon his infirmities, and the suggestions of 
some friends, he was induced to send in liis resigna- 
tion. Ilis mind was then as clear as ever, but his physi- 
cal system was greatly impaired. The letter of the 
Judges to him on his resignation testifies to their high 
appreciation of the purity of his character, the great 
powers of his intellect, and his profound knowledge of 
the law. His resignation took eflect the 1st of February, 
1870. Mr. Stanton was appointed his successor, but he 
died a few days afterwards, before even Judge Grier's 
resignation took effect. So it was said by the present Sec- 
retary of State, Ml-. Evarts, that Judge Grier had the 
singular experience of attending the funeral of his suc- 
cessor whilst he himself was still on the bench. Judge 
Strong was then nominated and confirmed. For the new 
judgeship created Mr. E. 11. Hoar, of Massachusetts, the 
Attorney-General, was nominated, but he was rejected by 
the Senate. Judge Bradley was then nominated and 
confirmed. 

There have been many things of an unpleasant char- 
acter said in regard to the appointment of Judges Strong 
and Bradley, but the writer of this narrative cannot 



<2:ive uiiy nppi-uvul of them. Undoubtedly Mr, Hoar, the 
Attorney-General, wa.s very active and earnest to se- 
cure tlie appointment of judges who would favor a re- 
versal of the decision against the legal-tender provision. 
He openly said as mueli. It is also true that Judge 
Strong was known to be in favor of the constitutionality 
of that provision. Whilst a judge of the Supreme Court 
of Pennsylvania he had written an opinion to that 
ctfect. It was also well known that Judge Bradley, 
as counsel of the Camden and And)oy Railroad C^ompany, 
had given a similar opinion. Their appointment was un- 
doubtedly advocated partly in view of these facts, and this 
can be said without any injurious reflection upon them. 
It is probable that nearly all appointments of judges are 
made with some reference to their opinions as to the 
construction to be given to the Constitution. It is not 
at all likely that during the war any one would have been 
nominated, or, if nominated, have been confirmed, who 
believed that under it secession was a constitutional rem- 
edy of the States for their grievances, or who did not ap- 
prove of the forcible suf)pression of the rebellion by the 
General Government, There could be, therefore, tio just 
ground of reproach against those gentlemen because they 
were appointed in view of their previously expressed 
opinions. The complaint against them arose from the re- 
versal, through their aid, of the previously w-ell-eonsidered 
judgment of the majonty of the Court, without any reasons 
being advanced different from those presented when the 
case was originally heard. Thoughtful men, without ques- 
tioning the learning and ability of Judges Strong and 
Bradley, felt that it was wrong that a solemn judgment 
of the Court, affecting great public interests, reached only 
after long and careful considei'ation, should be reversed 
by a mere change in its personnel. 

Soon after the new judges had taken their seats, 
Attorney-General Hoar moved that two cases then pend- 



ing" undecided —the Latham ease mid the Deniing case, 
appealed from the Court of Chiims -.sliould be set down 
for argument, and suggested that the k'gal-tendcr [iro- 
vision sht)uhl be considered in them. 'IMiis ai)[>rK'atiou 
created a gO(»d deal of feeling, and led to an un})leasant 
controversy among members of the court. The ma- 
jority — consisting of the three judges who had previously 
dissented from the opinion in Hepburn vs. Griswold, and 
the two newly appointed judges — ordered the argument, 
and it would have taken place but from the hict that 
the appeals were dismissed by the appellants and the 
rehearing of the question thus prevented. Those who 
take any interest in this unfortunate controversy will lind 
the [larticulars stated in tlie life of Chief Justice Chase 
and in the journals of the day. It is not the intention of 
the writer of this narrative to recall them. Judges Xel- 
son, Clitlbrd, and Field were on pleasant terms with all 
their associates, and however great the ditference of opin- 
ion between them and the other judges, tlieir personal re- 
lations were not disturbed. 

At the following term of December, 1870, two other 
cases came before the court involving the constitutionality 
of the legal-tender cases — Knox vs. Lee and Parker vs. 
Davis. They are reported in 12th Wallace, under the title 
of "Legal-Tender Cases." In them the whole question of 
the constitutionality of the legal-tender clause was rear- 
gued and reconsidered. The previous judgment in Hep- 
burn vs. Griswold was reversed by the judgment of five 
against four, and the constitutionality of the tender clause 
asserted. Judge Strong gave the opinion of the court. 
The Cliief Justice and Judges Clitibrd and Field each 
^^ave a dissenting opinion. ()f these dissenting opinions 
this can be said: that they exhaust the whole subject, and 
it is difficult to understand how any one, after reading 
them, can doubt that the Constitution intended that gold 
and silver alone should be a legal tender in the United 
States. As said by Judge Field in his opinion : 



78 

'■ If we consider the history of the times when the Constitution was 
adopted ; the intentions of the franiers of that instrument, as shown in 
their debates ; the contemporaneous exposition of the coinage power in 
the State conventions assembled to consider the Constitution, and in the 
public discussions before the people; the natural meaning of the terms 
used ; the nature of the Constitution itself as creating a government of 
enumerated powers; the legislative exposition of nearly three-quarters of 
a century; the opinions of judicial tribunals, and the recorded utterances 
of statesmen, jurists, and commentators, it would seem impossible to doubt 
that the only standard of value authorized by the Constitution was to con- 
sist of metallic coins struck or regulated by the direction of Congress, and 
that the power to establish any other standard was denied by that in- 
strument." 

No adequate account of these dissenting opinions can 
be given without a much fuller citation than this narra- 
tive permits. A few extracts will be made from the one 
by Judge Field, as it is only with his judicial career that 
this narrative is concerned. 

Referring to the position urged on the argument of the 
case, that as the issue of the notes was authorized under 
the power to borrow money, the annexing to them the 
quality of legal tender was an appropriate means to the 
execution of that power, as it enhanced their value, and 
thus increasing their circulation, induced parties the more 
readily to advance upon them, the Judge said as follows: 

The power of Congress to borrow money "is not difterent in its nature 
or essential incidents from the power to borrow possessed by individuals, 
and is not to receive a larger definition. Nor is it difterent from the 
power often granted to public and private corporations. The grant, it 
is true, is usually accompanied in these latter cases with limitations as 
to the amount to be borrowed, and a designation of the objects to which 
the money shall be applied,— limitations which in no respect affect the 
nature of the power. The terms ' power to borrow money ' have the 
same meaning in all these cases, and not one meaning when used by in- 
dividuals, another when granted to corporations, and still a different one 
when possessed by Congress. They mean only a power to contract for 
a loan of money upon considerations to be agreed between the parties. 
The amount of the loan, the time of repayment, the interest it shall bear, 
and the I'orm in which the obligation shall be expressed are simply mat- 
ters of arrangement between the parties. They concern no one else. It 
is no part or incident of a contract of this character that the rights or 
interests of third jjarties, strangers to the matter, shall be in any respect 



79 

affectt'd. The transaction is conniiftcd when the lender has parted with 
his money, and tlie l)ovio\ver lias ^iven liis promise of repayment at the 
time, and in the manner, and with tiie seenrities stipulated between 
them. 

•■ As an inducement to the loan, and security for its repayment, the 
borrower may of course pledge such pi'operty or revenues, and annex to 
his promises such rights and privileges as he may possess. His stipula- 
tions in this respect ar(* necessarily limited to his own property, rights, and 
privileges, and cannot extend to those of other persons. 

" Now. whether a borrower— be the borrower an individual, a corpora- 
tion, or the government— can annex to the bonds, notes, or other evi- 
dences of debt given for the money borrowed, any ((uality by which they 
will serve as a means of satisfying the contracts of other parties, must 
necessarily depend upon the question whether the borrower possesses any 
right to interfere with such contracts, and determine how they shall be 
satisfied. The right of the borrower in this respect rests upon no ditferent 
foundation than the right to interfere with any other property of third 
parties. And if it will not be contended, as I think I may assume it 
will not be, that the borrower possesses any right, in order to make a 
loan, to interfere with the tangible and visible property of third parties, 
I do not perceive how it can be contended that he has any right to inter- 
fere Avith their property when it exists in the form of contracts. A large 
part of the property of every commercial people exists in that form, and 
the principle which excludes a stranger from meddling with another's 
]iroperty which is visible and tangible, equally excludes him from med- 
dling with it when existing in the form of contracts. 

" That an individual or a corporation borrowing possesses no poAver to 
annex to his evidences of indebtedness any quality by which the holder 
will be enabled to change his contracts with third parties, strangers to 
the loan, is admitted ; but it is contended that Congress possesses such 
power because, in addition to the express power to borrow money, there is 
a clause in the Constitution Avhich authorizes Congress to make all laws 
' necessary and proper ' for the execution of the powers enumerated. 
This clause neither augments nor diminishes the expressly designated 
powers. It only states in terms what Congress would equally have had 
the right to do without its insertion in the Constitution. It is a general 
principle that a power to do a particular act includes the power to adopt 
all the ordinary and appropriate means for its execution." 

" That is only appropriate which has some relati(m of fitness 

to an end. Borrowing, as already stated, is a transaction by Avhich, on 
one side, the lender parts Avith his money, and on the other the borrower 
agrees to repay it in such form and at such time as may be stipulated. 
Though not a necessary part of the contract of borroAving, it is usual for 
the borroAver to offer securities for the repayment of the loan. The fit- 
ness Avhich Avould render a means appropriate to this transaction thus 
considered must have respect to the terms Avhich are essential to the con- 



so 

tract, or to the securities which the borrower may furnish as an induce- 
ment to the loan. The quality of legal tender does not touch the terms 
of the contract of borrowing, nor does it stand as a security for the loan. 
A security su^jposes some right or interest in the thing pledged, which 
is subject to the disposition of the borrower. 

" There has been much confusion on this subject from a failure to dis- 
tinguish between the adaptation of particular means to an end and the 
effect, or supposed effect, of those means in producing results desired by 
the government. The argument is stated thus: the object of bor- 
rowing is to raise funds ; the annexing of the quality of legal tender to 
the notes of the government induces parties the more readily to loan upon 
them ; the result desired by the government — the acquisition of funds — 
is thus accomplished ; therefore, the annexing of the quality of legal 
tender is an appropriate means to the execution of the power to borrow. 
But it is evident that the same reasoning would justify, as appropriate 
means to the execution of this power, any measures which would result 
in obtaining the required funds. The annexing of a provision by which 
the notes of the government should serve as a free ticket in the public 
conveyances of the country, or for ingress into places of public amuse- 
ment, or which would entitle the holder to a percentage out of the reve- 
nues of private corporations, or exempt his entire property, as well as 
the notes themselves, from State and municipal taxation, would produce 
a ready acceptance of the notes. But the advocate of the most liberal 
construction would hardly pretend that these measures, or similar meas- 
ures touching the property of third parties, would be appropriate as a 
means to the execution of the power to borrow. Indeed, there is no in- 
vasion by government of the rights of third ijarties which might not 
thus be sanctioned upon the pretence that its allowance to the holder of 
the notes would lead to their ready acceptance, and produce the desired 
loan. 

" The actual effect of the quality of legal tender in inducing parties to 
receive them was necessarily limited to the amount required by existing 
debtors, who did not scruple to discharge with them their pre-existing 
liabilities. For moneys desired from other parties, or supplies required 
for the use of the army or navy, the provision added nothing to the 
value of the notes. Their borrowing power or purchasing power de- 
pended, by a general and an universal law of currency, not upon the 
legal-tender clause, but upon the confidence which the parties receiving 
the notes had in their ultimate payment. Their exchangeable value was 
determined by this confidence, and every person dealing in them ad- 
vanced his money and regulated his charges accordingly." 

" Without the legal-tender provision the notes would have cir- 
culated equally well and answered all .the purposes of government — the 
ouly direct benefit resulting from that provision arising, as already stated, 
from the ability it conferred upon unscrupulous debtors to discharge with 
them previous obligations. The notes of State banks circulated without 



81 

possessing that (quality and supplied a currency for the people just so 
long as confidence in the ability of the banks to redeem tlie notes contin- 
ued. The notes issued by the national bank associations during the war, 
under the authority of Congress, amounting to three hundred millions, 
which were never made a legal tender, circulated equall}' well with the 
notes of the United States. Neither their utility nor their circulation was 
diminished in any degree by the absence of a legal-tender quality. They 
rose and fell in the market under the same influences and precisely to the 
same extent as the notes of the United States, which possessed this qual- 
ity." 

Referring to the position that the annexing of the qual- 
ity of legal tender was a necessary means to the exercise 
of other powers of Congress, particularly to declare war, to 
suppress insurrection, to raise and support armies, and to 
provide and maintain a navy, all of which were called into 
exercise and severely taxed at the time, the Judge said as 
follows : 

" It is evident that the notes have no relation to these powers, or to any 
other powers of Congress, except as they furnish a convenient means for 
raising money for their execution. The existence of the war only in- 
creased the urgency of the government for funds. It did not add to its 
powers to raise such funds, or change, in any respect, the nature of tho.se 
powers or the transactions which they authorized. If the power to en- 
graft the quality of legal tender upon the notes existed at all with Con- 
gress, the occasion, the extent, and the purpose of its exercise were mere 
matters of legislative discretion ; and the power may be equally exerted 
when a loan is made to meet the ordinary expenses of government in 
time of peace, as when vast sums are needed to raise armies and provide 
navies in time of war. The wants of the government can never be the 
measure of its powers. 

" The Constitution has specifically designated the means by which funds 
can be raised for the uses of the government, either in war or peace. 
These are taxation, borrowing, coining, and the sale of its public prop- 
erty. Congress is empowered to levy and collect taxes, duties, imposts, 
and excises to any extent to which the public necessity may require. 
Its power to borrow is equally unlimited. It can convert any bullion it 
may po.ssess into coin, and it can dispose of the public lands and other 
property of the United States or any part of such property. The desig- 
nation of these means exhausts the powers of Congress on the subject of 
raising money. The designation of the means is a negation of all others, 
for the designation would be unnecessary and absurd if the use of any 
and all means were permissible without it. These means exclude a re- 
sort to forced loans, and to any compulsory interference with the prop- 
erty of third persons, excejit by regular taxation in one of the forms 
mentioned." 



82 

After showing that the act of Congress impaired the 
obhgation of past contracts, and referring to the statement 
of Judge Miller, in his dissenting opinion in Hepburn vs. 
Griswold, that the Constitution does not forbid legislation 
having that etfect, the Judge said as follows : 

" It is true there is no provision in the Constitution forbidding in ex- 
press terms such legislation. And it is also true that there are express 
powers delegated to Congress, the execution of which necessarily operates 
to impair the obligation of contracts. It was the object of the framers 
of that instrument to create a national government competent to repre- 
sent the entire country in its relations with foreign nations, and to ac- 
comi)lish by its legislation measures of common interest to all the people, 
which the several States in their independent capacities were incapable 
of effecting, or if capable, the execution of which would be attended 
with great difficulty and embarrassment. They, therefore, clothed Con- 
gress with all the powers essential to the successful accomplishment of 
these ends, and carefully withheld the grant of all other powers. Some 
of the powers granted, from their very nature, interfere in their execu- 
tion with contracts of parties. Thus war suspends intercourse and com- 
merce between citizens or subjects of belligerent nations; it renders during 
its continuance the performance of contracts, previously made, unlawful. 
These incidental consequences were contemplated in the grant of the 
war power. So the regulation of commerce and the imposition of duties 
may so affect the prices of articles imported or manufactured as to es- 
sentially alter the value of previous contracts respecting them ; but this 
incidental consequence was seen in the grant of the power over commerce 
and duties. There can be no valid objection to laws passed in execution 
of express powers that consequences like these follow incidentally from 
their execution. But it is otherwise when such consequences do not fol- 
low incidentally, but are directly enacted. 

" The only express authority for any legislation affecting the obligation 
of contracts is found in the power to establish a uniform system of bank- 
ruptcy, the direct object of which is to release insolvent debtors from 
their contracts upon the surrender of their property. From this express 
gi-ant in the Constitution I draw a very different conclusion from that 
drawn in the dissenting opinion in Hepburn vs. Griswold, and in the 
opinion of the majority of the court just delivered. To my mind it is a 
strong argument that there is no general power in Congress to interfere 
with contracts, that a special grant was regarded as essential to authorize 
an uniform system of bankruptcy. If such general power existed the 
deleo-ation of an express power in the case of bankrupts was unneces- 
sary. As very justly observed by counsel, if this sovereign power could 
be taken in any case without express grant, it could be taken in con- 
nection with bankruptcies, which might be regarded in some respects as 
a regulation of commerce made in the interest of traders. 



83 

"The grant of a liinitcd power over the subject of contracts necessarily 
implies that the franiers of the Constitution did not intend that Congress 
should exercise unliniitt'd power, or any power less restricted. The 
limitation designated is the measure of congressional power over the 
subject. This follows from the nature of the instrument, as one of 
enumerated jjowers. 

"The doctrine that where a power is not expressly forbidden it may 
be exercised would change the whole character of our government. As 
I read the writings of the great commentators and the decisions of this 
court, the true doctrine is the exact reverse, that if a power is not in 
terms granted, and is not necessary and proper for the exercise of a power 
thus granted, it does not exist." 

And, after referring to the interference ^^'itll contracts 
bv the legiskition of the several States, previous to the 
adoption of the Constitution, in the form of tender laws, 
appraisement laws, installment laws, and suspension laws, 
which was the cause of great oppression and injustice, 
and which Judge Story declared prostrated all private 
credit and all private morals, the Judge continued as 
follows : 

" It would retiuire verj^ clear evidence, one would sui>pose, to induce a 
belief that with the evils, resulting from what Marshall terms the sys- 
tem of lax legislation following the Revolution, deeply impressed on their 
minds, the framers of the Constitution intended to vest in the new gov- 
ernment created bj^ them this dangerous and despotic power which they 
were unwilling should remain with the States, and thus widen the pos- 
sible sphere of its exercise. 

" When the possession of this power has been asserted in argument, 
(ibr until now it has never been asserted in any decision of this court) 
it has been in cases where a supposed public benefit resulted from the 
legislation, or where the interference with the obligation of the contract 
was very slight. Whenever a clear case of injustice, in the absence of 
such supposed public good, is stated, the exercise of the power by the 
government is not only denounced, but the existence of the power is de- 
nied. No one, indeed, is found bold enough to contend that if A has a 
contract for one hundred acres of land, or one hundred pounds of fruit, 
or one hundred yards of cloth, Congress can pass a law compelling him 
to accept one-half of the quantity in satisfaction of the contract. But 
Congress has the same power to establish a standard of weights and 
measures as it has to establish a standard of value, and can, from time 
to time, alter such standard. It can declare that the acre shall consist of 
eighty square rods instead of one hundred and sixty, the pound of eight 
ounces instead of sixteen, and the foot of six inches instead of twelve, 
and if it could compel the acceptance of the same uimihcr of acres, 



84 

pounds, or yards after such alteration, instead of the actual quantity stip- 
ulated, then the acceptance of one-half of the quantity originally desig- 
nated could be directly required without going through the form of alter- 
ing the standard. No just man could be imposed upon by this use of 
words in a double sense, where the same names were applied to denote 
different quantities of the same thing, nor would his condemnation of 
the wrong committed in such case be withheld because the attempt was 
made to conceal it by the jugglery of words. 

" The power of Congress to interfere with contracts for the payment of 
money is not greater or in any particular different from its power with 
respect to contracts for lands or goods. The contract is not fulfilled any 
more in one case than in the other by the delivery of a thing which is 
not stipulated, because by legislative action it is called by the same 
name. Words in contracts are to be construed in both cases in the sense 
in which they were understood by the parties at the time of the contract. 
" Let us for a moment see where the doctrine of the power asserted will 
lead. Congress has the undoubted right to give such denominations as it 
chooses to the coin struck by its authority, and to change them. It can 
declare that the dime shall hereafter be called a dollar, or, what is the 
same thing, it may declare that the. dollar shall hereafter be composed of 
the grains of silver which now compose the dime. But would anybody 
pretend that a contract for dollars, composed as at present, could be satis- 
fied by the delivery of an equal number of dollars of the new issue? I 
have never met any one who would go to that extent. The answer al- 
ways has been that would be too flagrantly unjust to be tolerated. Yet 
enforcing the acceptance of paper promises or paper dollars, if the prom- 
ises can be so called, in place of gold or silver dollars, is equally enforcing 
a departure from the terms of the contract, the injustice of the measure 
depauding entirely upon the actual value at the time of the promises in the 
market. Now reverse the case. Suppose Congress should declare that 
hereafter the eagle should be called a dollar or that the dollar should be 
composed of as many grains of gold as the eagle, would any body for a 
moment contend that a contract for dollars, composed as now of silver, 
should be satisfied by dollars composed of gold? I am confident that no 
judge sitting on this bench, and, indeed, that no judge in Christendom 
could be found, who would sanction the monstrous wrong by decreeing 
that the debtor could only satisfy his contract in such case by paying ten 
times the value originally stipulated. The natural sense of right which 
is implanted in every mind would revolt from such supreme injustice. 
Yet there cannot be one law for debtors and another law for creditors. If 
the contract can at one time be changed by congressional legislation for 
the benefit of the debtor, it may at another time be changed for the bene- 
fit of the creditor. 

"For acts of flagrant injustice such as those mentioned there is no au- 
thority in any legislative body, even though not restrained by any ex- 
press constitutional prohibition. For as there are unchangeable principles 



85 

of rifiht and morality, without which society would be impossible, and 
men would be but wild beasts preyinff ujjon each other, so there are fun- 
damental princij)les of eternal justice, upon the existence of which all 
constitutional <;overnment is founded, and without which yovernmeut 
would be an intolerable and hateful tyrainiy." 

Referriui;' to the asseited power of Coii2:rcss to require 
itf^ own pi'oniises to be received in discharge of its pre- 
vious ol)li<::ations, the Judge said : 

" It follows, then, logically, from the doctrine advanced by the major- 
ity of the court as to the power of Congress over the subject of legal 
tender, that Congress may borrow gold coin upon a pledge of the public 
faith to repay gold at the nuiturity of its obligations, and yet, in direct 
disregard of its pledge, in open violation of faith, may compel the lender 
to take, in place of the gold stipulated, its own i)romises : and that legis- 
lation of this character would not be in violation of the Constitution, but 
in harmony with its letter and spirit. 

" What is this but declaring that repudiation by the government of 
the United States of its s'olemn obligations would be constitutional? 
Whenever the fultillment of the obligation in the manner stipulated is 
refused, and the acceptance of something different from that stipulated 
is enforced against the will of the creditor, a breach of faith is committed ; 
and to the extent of the difference of value between the thing stipulated 
and the thing which the creditor is compelled to receive, there is repudi- 
ation of the original obligation. I am not willing to admit that the Con- 
stitution, the boast and glory of our country, would sanction or permit 
any such legislation. Eepudiation in any form, or to any extent, would 
be dishonor, and for the commission of this public crime no warrant, in 
my judgment, can ever be found in that instrument." 

And, referring to the argument that Congress can reg- 
uUite the aUoy of the coins issued under its authority, and 
luis exercised its power in that respect without question, 
by diminishing in some instances the actual quantity of 
gold or silver they contain, the Judge said : 

" Undoubtedly Congress can alter the value of the coins issued by its 
authority by increasing or diminishing, from time to time, the alloy they 
contain, just as it may alter, at its pleasure, the denominations of the 
several coins issued, but there its power stops. It cannot make these al- 
tered coins the equivalent of the coins in their previous condition ; and, 
if the new coins should retain the same names as the original, they would 
only be current at their true value. Any declaration that they should 
have any other value would be inoperative in fact, and a monstrous dis- 
regard by Congress of its constitutional duty. The power to coin money, 



as already cleclaretl by this covirt, is a great trust devolved upon Congress, 
carrying with it the duty of creating and maintaining an uniform stand- 
ard of value throughout the Union, and it would be a manifest abuse of 
this trust to give to the coins issued by its authority auy other than their 
real value. By debasing the coins, when once the standard is tixed, is 
meant giving to the coins, by their form and impress, a certificate of their 
having a relation to that standard different from that which, in truth, 
they possess ; in other words, giving to the coins a false certificate of their 
value. Arbitrary and profligate governments have often resorted to this 
miserable scheme of robbery, which Mills designates as a shallow and 
impudent artifice, the ' least covert of all modes of knavery, which con- 
sists in calling a shilling a pound, that a debt of one hundred pounds 
may be cancelled h)y tlie payment of one hundred shillings.' " 

The Judge concluded his opinion as follows : 

" I know that the measure, the validity of which I have called in 
question, was passed in the midst of a gigantic rebellion', when even the 
bravest hearts sometimes doubted the safety of the Republic, and that 
the patriotic men who adopted it did so under the conviction that it 
would increase the ability of the government to obtain funds and supplies, 
and thus advance the national cause. Were I to be governed by my ap- 
preciation of the character of those men, instead of my views of the re- 
quirements of the Constitution, I should readily assent to the views of the 
majority of the court. But, sitting as a judicial officer, and bound to 
compare every law enacted by Congress with the greater law enacted by 
the people, and being unable to reconcile the measure in question with 
that fundamental law, I cannot hesitate to pronounce it as being, in my 
judgment, unconstitutional and void. 

"In the discussions which have attended this subject of legal tender 
there has been at times what seemed to me to be a covert intimation, 
that opposition to the measure in question was tlie expression of a spirit 
not altogether favorable to the cause, in the interest of which that 
measure was adopted. All such intimations I repel with all the energy I 
can express." I do not yield to any one in honoring and reverencing the 
noble and patriotic men who were in the councils of the nation during 
the terrible struggle with the rebellion. To them belong the greatest of 
all glories in our history, — that of having saved the Union, and that of 
having emancipated a race. For these results they will be remembered 
and honored so long as the English language is spoken or read among 
men. But I do not admit that a blind approval of every measure which 
they may have thought essential to put down the rebellion is any evi- 
dence of loyalty to the country. The only loyalty which I can admit 
consists in obedience to the Constitution and laws made in pursuance 
of it. It is only by obedience that affection and reverence can be shown 
to a superior having a right to command. So thought our great Master 
when he said to his disciples : ' If ye love me, keep my commandments.' " 



87 



TiTR LE(!ISLAT[VE PoWKll OF 'I'lIK I N'Slltd KNT S'I'ATKS DUlUxXG 

TifK Civil AVak, and tiik kxtk.nt to which thk Confed- 

KUATK (ioVKltX.MK.NT COlLI) P.H F. IK; ARDKD AS A ] )i: FaCTO 
CJOVKIIXMKNT. 

Tlie states do not (lorive their powers iVom the general 
government. Thirteen of them existed before that gov- 
ernment was formed ; and the others have come under it 
with simihir powers and rights. Tf there were no States 
tliere wonhl of course he no such pohtieal organization as 
the United States. If the Union were destroyed the States 
as independent pohtieal communities would remain, though 
a government hke that of the Union would be necessary 
to their prosperity. That government preserves peace 
among them, thus ensuring domestic tranquillity, reg- 
ulates commercial intercourse between them, secures to 
citizens of the several States equality of privileges and 
immunities in all of them, and exercises control over 
foreign atiairs and matters of general concern, which could 
not be managed by the States acting separately, except in 
a few particulars, without great embarrassment and difh- 
culty. It is essential, therefore, as all must see, to the 
whole country. But as the original States existed before 
the Constitution, and the States subsequently formed have 
been admitted into the Union upon terms of equality with 
them — all possess the attributes and powers of distinct 
pohtieal communities, except as limited and restrained by 
that insti-ument. When the civil war broke out the char- 
acter of the insurgent States as such communities was not 
changed. They retained and exercised the powers pre- 
viously possessed, which were essential to the security of 
persons and property, the preservation of order, and the 
due administration of justice. Their attempt to sever their 
relations to the government of the Union and to form a 
confederation wdth a part only of the States, and a new 
central government for themselves, could have, under the 
Constitution, no validitv. To those who regard that in- 



88 

strument as creating a perpetual Union, to be dissolved 
only by the consent of tlie people of the several States, 
this new confederation could be nothing more than a re- 
bellious organization — treasonable in its designs and ac- 
tions — to be suppressed, if necessary, b}" armed force. That 
instrument prohibits any treaty, alliance, or confederation 
between one State and another, and the new confederation 
was in open defiance and contempt of this prohibition. It 
also declares that the Constitution, and the laws of the 
United States made in pursuance thereof, shall be the su- 
preme law of the land. The new confederation denied this 
supremacy, repudiated the authority of the Constitution and 
of the laws passed in pursuance thereof, and endeavored 
to maintain its position by force of arms. The United 
States could, therefore, only treat it, and the government 
created by it, as the military representative of the insur- 
rection against their authority. The concession of bel- 
ligerent rights gave to its armed forces in the conduct of 
the war the position and rights of parties engaged in law- 
ful warfare. But no further recognition was ever extended 
to it. Its legislation was never treated as valid, and when 
its forces were overthrown, its whole organization dis- 
appeared. 

The insurgent States, however, were in a ditierent posi- 
tion. They remained as previously to the war, with similar 
legislative powers, their acts being invalid only so far as 
they impaired or tended to impair the supremacy of the 
government of the Union or the rights of loyal citizens. 

The Constitution, after delegating to the Congress of 
the United States certain enumerated powers, declares 
that it may make any laws necessary or proper to carry its 
powers into execution. Judge Field was always a "Union 
man," and when the rebellion broke out, he never hesi- 
tated a moment to give his earnest support to the govern- 
ment for its suppression. He had no patience with the 
doctrine of non-coercion, and denounced it as the sugges- 
tion of treason, or the utterance of stupidity. And to 



89 

this (lay lie never refers to it except with an ex[)ressioii 
of conteni]>t. In a eliari;-e to a grand jnry at Pan Fran- 
cisco in 1872, in alluding to the results of the war, he thus 
spoke of it : 

"That war has done away forever with the miserable notion, which 
extensively prevailed at the time of the outbreak of the rebellion, that 
the general government, beeause it was formed by the people of the sev- 
eral States, sovereign in some of their powers, should not exert any co- 
ercion to enforce its laws. No one is now willing to run a tilt against 
common sense by adducing any argument in support of this absurd po- 
sition ; and the war has demonstrated that the general government pos- 
sesses all the power necessary to enforce obedience to its laws throughout 
the limits of the Republic." 

The views stated as to the legislative powei-s of the in- 
surgent States, and the character given to the Confed- 
erate government as the representative of tlie military 
insurrection, have been sanctioned by the Supreme Court 
in many decisions, notwithstanding some hesitation and 
some doubtful expressions in the early cases. These de- 
cisions deny all validity to any legislative action of the 
States favoring the insurrection, or against the rights of 
loyal citizens, but they sustain all other acts of ordinary 
legislation; and they treat the government of the Confed- 
erate States as a wholly illegal and traitorous combination. 
In Texas vs. White, at the December term, 1868, Chief 
Justice Chase, after observing that the Legislature of 
Te«^as, during the war, constituted one of the depart- 
ments of a state government established in hostility to 
the Constitution, and could not therefore l>e regarded in 
the courts of the United States as a lawful legislature, 
said that, as a department of the government having actual 
control of the State, he was of opinion that its acts, when 
not hostile to the United States, should be regarded as 
valid. Speaking for the court, he said : 

" It is not necessary to attempt any exact definitions within which the 
acts of such a state government must be treated as valid or invalid. It 
may be said, perhaps with sutftcient accuracy, that acts necessary to 
peace and good order among citizens — such, for example, as acts sanction- 
ing aiul protecting marriage and the domestic relations, governing the 



90 

course of descents, regnlatin<^ the conveyance and transfer of property, 
real and personal, and providing remedies for inj iiries to person and es- 
tate, and otlier similar acts, which wonld be valid if emanating from a 
lawful government — must be regarded, in general, as valid when pi'oceed- 
ing from an actual though unlawful government ; and that acts in fur- 
therance or support of rebellion against the United States, or intended to 
defeat the Just rights of citizens, and other acts of like nature, must, in 
general, be regarded as invalid and void." — (7 Wall., 733.) 

In Horn vs. Lockliai't, before the court at the October 
tei-Di of 1873, these views are reasserted with still greater 
emphasis. There a bill had been tiled by the legatees in 
a will to compel an executor in-Alal)ama to account for 
funds received by him belonging to the estate of his tes- 
tator, and to pay to them their distributive shares. He 
had, under a law of that State, invested the funds in bonds 
of the Confederate States, and the investment was ap- 
proved by the decree of the probate court; and the ques- 
tion w\as whether this disposition of the moneys received, 
and the decree of the court, were a sutiicient answer to the 
suit of the legatees to compel an accounting. In reply 
to it. Judge Field, speaking for tbe court, said : 

" The bonds of the Confederate States were issued for the avowed 
purpose of raising funds to prosecute the war then waged by them 
against the government of the United States. The investment was, 
therefore, a direct contribution to the resources of the Confederate gov- 
ernment ; it was an act giving aid and comfort to the enemies of the 
United States ; and the invalidity of any transaction of that kind, from 
whatever source originating, ought not to be a debatable matter in the 
courts of the United States. No legislation of Alabama, no. act of its 
convention, no judgment of its tribunals, and no decree of the Confed- 
erate government could make such a transaction lawful. 

" We admit that the acts of the several States in their individual ca- 
pacities — executive, judicial, and legislative — during the war, so far as 
they did not impair or tend to impair the supremacy of the national 
authority, or the just rights of citizens under the Constitution, are, in 
general, to be treated as valid and binding. The existence of a state of 
insurrection and war did not loosen the bonds of society, or do away with 
civil government or the regular administration of the law. Order was to 
be preserved, police regulations maintained, crime prosecuted, property 
protected, contracts enforced, marriages celebrated,, estates settled, and 
the transfer and descent of property regulated precisely as in time of 
peace. No one, that we are aware of, seriously questions the validity of 



01 

judicial or leji'i8lati\e acts in the iiisiirn-ctiimary Stads ((lucliinji tlicse 
and kindred subjects, where they were not hdslile in tlicir purpose or 
mode of enforeenient to the anthority of tiu' national jinvcrnincut, and 
did not impair the rijihts of eitizens under the Constitution/' — (17 NN'all., 

r>s(i. ) 

111 ['nitcd States vs. Insurance Companies, at the Octo- 
]>vv term of 1874, these views were reiterated and affirmed, 
the court citing- witli ;i[)[)r()li:iii()U tltc [»;issa,<;-cs iVoiii the 
opinions in Texas vs. Wliite and l.ockhart vs. Jlorn, given 
al)ove. These corporations, created hy tlie Legishiture of 
(Tcorgia during- tlie war, were held to lie lawful institu- 
tions, c:4)a])le of suing in the federal courts, not heing in 
their purposes or operation hostile to the I^nion, or in con- 
flict with the Constitution, hut creatures of ordinary leg- 
islation, such as might have heen created if there had heen 
no war or attempted secession. In giving the opinion of 
the court, Judge Strong, after making the al)ove and other 
similar citations, said : 

"After these emphatic utterances controversy upon this subject should 
cease. All the enactments of the dc facto legislatures in the insurrec- 
tionary States during the war, which were not hostile to the Union or 
to the authority of the general government, and which were not in con- 
flict with the Constitution of the United States, or of the States, have 
the same validity as if they had l)een enactments of legitimate legisla- 
tures. Any other doctrine than this would work great and unnecessary 
hardshii) upon the people of those States, without any corresponding 
benefit to the citizens of other States, and without any advantage to the 
national government." — (22 Wall., 103. See also Sprott vs. United States, 
20 Wall., 464.) 

The character in wdiich the go^'ernmeut of the Confed- 
erate States was to Ijc regarded, in view of the concession 
of hehigerent rights to its armed forces, was tlie suhjectof 
frequent consideration by the Supreme Court. In Thoi-ing- 
ton vs. Smith, at the Deceml)er term of 1868, the Chief 
Justice, in dehvering the opinion of the court, spoke of the 
different kinds of de facto governments, and compared the 
government of the Confederate States with the govern- 
ment imposed upon Castine, in Maine, by the Bi'itish forces 
in 1814, and that imposed upon Tampico, in Mexico, by the 



92 

Americans in 1846, and designated it as a government of 
paramount force, to which obedience, being a matter of 
necessity, became a duty for the preservation of civil order; 
but said that by the government of the United States it had 
been regarded, from an early period of the civil war to its 
close, as simply the military representative of the insurrec- 
tion against their authority — (7 Wall., 9.) But by far the 
most thorough and exhaustive consideration of the char- 
acter of the government of the Confederate States, and its 
relation to the government of the Union, is contained in the 
opinion in Brufiy vs. AVilliams, decided at the October term 
of 1877. In that case the question arose as to the validity of 
an act of the Confederate States, during the war, confiscating 
a debt due from a citizen of Virginia to a citizen of Penn- 
sylvania. The former having died, an action was brought 
after the war against his administrator to recover the del)t. 
The defendant took the ground that the enactment of 
the Confederate States was that of an independent nation, 
and must be so treated. His contention was substantially 
this : that the Confederate government, from April, 1861, 
until it was overthrown in 1865, was a government de facto, 
complete in all its parts, exercising jurisdiction over a well- 
defined territory, which included that portion of Virginia 
where the deceased resided, and as such de facto govern- 
ment it had engaged in war with the United States ; and 
possessed and was justified in exercising within its territo- 
rial limits all the rights of war which belonged to an inde- 
pendent nation, and among them, that of confiscating debts 
due by its citizens to its enemies. 

In support of this position reference was made to numer- 
ous instances of de facto governments which had existed 
in England and in other parts of Europe and in America, 
to the doctrines of jurists and writers on public law re- 
specting the powers of such governments, and the validity 
accorded to their acts, to the opinion of the Supreme Court 
of the United States, in Thorington vs. Smith and in the 
Prize Cases, to the concession of belligerent rights to the 



93 

ContedcM'iito goviM-iuiioiit, and to the action of tlio States 
diirinu' the revolutionaiy war and tlic [u'riod ininu'diately 
followinii' it. 

In re[)ly to this position, Jud«;\' Field, in (U'livering the 
o[)iiuon ot" the court said as follows : 

'■ We do not question tlie doctrines of public law which have been in- 
voked, nor their application in proper cases, but it will be found upon 
examination that there is an essential diiference between the government 
of the Confederate States and those de facto governments. The latter 
are of two kinds. One of them is such as exists after it has expelled the 
regularly constituted authorities trom the seats of power and the public 
offices, and established its own functionaries in their places, so as to repre- 
sent in fact the sovereignty of the nation. Such was the government of 
England under the commonwealth established upon the execution of the 
King and the overthrow of the loyalists. As far as other nations are con- 
cerned such a government is treated as in most respects possessing rightful 
authority ; its contracts and treaties are usually enforced ; its acquisitions 
are retained ; its legislation is in general recognized ; and the rights ac- 
quired under it are, with few exceptions, respected after the restoration of 
the authorities which were expelled. All that counsel sa^- of de facto gov- 
ernments is justly said of a government of this kind. But the Confederate 
government was not of this kind. It never repi-esented the nation ; it never 
expelled the public authorities from the country ; it never entered into any 
treaties; nor was it ever recognized as that of an independent power. It 
collected an immense military force and temporarily expelled the author- 
ities of the United States from the territory over which it exercised an 
usmped dominion ; but in that expuLsion the United States never ac- 
quiesced ; on the contrary, they immediately resorted to similar force to re- 
gain possession of that territory and re-establish their authority, and they 
continued to use such force until they succeeded. It would be useless 
to comment upon the striking contrast between a government of this 
nature, which with all its military strength never had undisputed posses- 
sion of power for a single day, and a government like that of the Com- 
monwealth of England under Parliament or Cromwell. 

"The other kind oi de facto governments, to which the doctrines cited 
relate, is such as exists where a portion of the inhabitants of a country 
have separated themselves from the parent state and established an inde- 
pendent government. The validity of its acts, both against the parent 
state and its citizens or subjects, depends entirely upon its ultimate suc- 
cess. If it fail to establish itself permanently, all such acts perish with 
it. If it succeed and become recognized, its acts from the conuuencemeut 
of its existence are upheld as those of an independent nation. Such was 
the case of the state governments under the old confederation on their sep- 
aration from the British Crown. Having made good their declaration of 
independence, everything they did from that date was as valid as if their 



94 

independence had been at once acknowledged. Confiscations, therefore, 
of enemy's property made by them were sustained as if made by an inde- 
pendent nation. But if they liad failed in securing their independence, 
and the authority of the King had been re-established in this country, no 
one would contend that their acts against him, or his loyal subjects, could 
have been upheld as resting upon any legal foundation. 

" When a rebellion becomes organized and attains such proportions as 
to be able to put a formidable military force in the field, it is usual for the 
established government to concede to it some belligerent rights. This 
concession is made in the interests of liumanity, to prevent the cruelties 
which would inevitably follow mutual reprisals and retaliations. But 
belligerent rights, as the terms import, are rights which exist only during 
war; and to what extent they shall be accorded to insurgents depends 
upon the considerations of justice, humanity, and policy controlling the 
government. The rule stated by Vattel, that the justice of the cause be- 
tween two enemies being by the law of nations reputed to be equal, what- 
soever is permitted to the one in virtue of war is also permitted to the 
other, applies only to cases of regular war between independent nations. 
It has no application to the case of a war between an established govern- 
ment and insurgents seeking to withdraw themselves from its jurisdiction, 
or to overthrow its authority.* The concession made to the Confederate 
government in its military character was shown in the treatment of cap- 
tives as prisonei'S of war, the exchange of prisoners, the recognition of 
flags of truce, the release of officers on parole, and other arrangements 
having a tendency to mitigate the evils of the contest. The concession 
placed its soldiers and militaiy officers in its service on the footing of those 
engaged in lawful war, and exempted them from liability for acts of legit- 
imate warfare. But it conferred no further immunity or any other rights. 
It in no respect condoned acts against the government not committed by 
armed force in the military service of the rebellious organization. It sanc- 
tioned no hostile legislation ; it gave validity to no contracts for military 
stores; and it impaired in no respect the rights of loyal citizens as they 
had existed at the commencement of the hostilities. Parties residing in 
the insurrectionary territory, having property in their possession as trus- 
tees or bailees of loyal citizens, may in some instances have had such 
property taken from them by force, and in that event they may perhaps 
be released from liability. Their release will depend upon the same 
principles which control in ordinary cases of violence by an unlawful 
combination too powerful to be successfully resisted. 

*'But debts not being tangible things subject to physical seizure and 
removal, the debtors cannot claim release from liability to their creditors 
by reason of the coerced payment of equivalent sums to an unlawful 
combination. The debts can only be satisfied when paid to the creditors 
to whom they are due, or to others by direction of lawful authority. Any 

* Halleck's Inter. Law, ch. xiv., sec. 9. 



9;-) 



sum which the uiilawi'ul coinljination may liavc conipclUnl the dehtors to 
pay to its agents on account of debts to h)yal citizens cannot have any ef- 
fect upon their obligations ; they remain subsisting and unimpaired. Tlic 
coiutssion ofliclligerent riglitsto the rebellious organization yielded noth- 
ing to its iiiitcnsions of legality. If it had .succeeded in its contest it would 
have protected the debtor from further claim for the debt, but as it foiled 
the creditor may have recour.se to the courts of the country as prior to the 
rebellion. It would be a strange thing, if the nation, after succeeding in 
suppressing the rebellion and re-establishing its authority over the insur- 
rectionary district, should by any of its tribunals recognize as valid the at- 
tempt of the rebellious organization to confiscate a debt due to a loyal cit- 
izen as a penalty for his loyalty. Such a thing would be unprecedented 
in the historj- of unsuccessful rebellions, and would rest upon no just 
principle. 

" Tlie immense power exercised by the government of the Confederate 
States for nearly four years, the territory over which it extended, the vast 
resources it wielded, and the millions who acknowledged its authority, pre- 
sent an imposing spectacle, well fitted to mislead the mind in considering 
the legal character of that organization. It claimed torejjresent an inde- 
pendent nation and to possess sovereign powers ; and as such to displace 
the jurisdiction and authority of the United States from nearly half of 
their territory, and instead of their laws to substitute and enforce those of 
its own enactment. Its pretensions being resisted, they were submitted to 
the arbitrament of w^ar. In that contest the Confederacy failed, and in its 
foilure its pretensions were dissipated, its armies scattered, and the whole 
fabric of its government broken in pieces. The very property it had 
amassed passed to the nation. The United States during the whole con- 
test never for one moment renounced their claim to supreme jurisdiction 
over the whole country, and to the allegiance of every citizen of the Re- 
public. They never acknowledged in any form, or through any of their 
departments, the lawfulness of the rebellious organization, or the validity 
of any of its acts, except so far as such acknowledgment may have arisen 
from conceding to its armed forces in the conduct of the war the standing ' 
and rights of those engaged in lawful warfare. They never recognized its 
asserted power of rightful legislation." 

The Judge then proceeded to show tliat there wixs noth- 
ing in confliet with these view\s in Thorington vs. Smith, 
or in the Prize Cases, or in Wheaton or Vattel, and tiien 
added, that it was unnecessary to pursue the sulijcct fur- 
ther; that— 

"\Yhatever de facto character may be ascribed to the Confederate gov- 
ernment consists solely in the fact, that it maintained a contest w ith the 
United States for nearly four years, and dominated for that period over 



96 

a large extent of territory. When its military forces were overtluown 
it utterly perished, and with it all its enactments." 

He concluded as follows : 

" Whilst thus holding that there was no validity in any legislation of the 
Confederate States which this court can recognize, it is proper to observe 
that the legislation of the States stands on very different grounds. The 
same general form of government, the same general laws for the admin- 
istration of justice and the protection of private rights, which had ex- 
isted in the States prior to the rebellion, remained during its continuance 
and afterwards. As far as the acts of the States did not impair or tend 
to impair the supremacy of the national authority or the just rights of 
citizens under the Constitution, they are, in general, to be treated as 
valid and binding." — (Citing from Horn vs. Lockhart, 76 U. S.) 



Protection from Military Arrest and Imprisonment dur- 
ing THE War of Citizens not in the Military Service, 
in States where the Civil Courts were open and in 
the Undisturbed Exercise of their Jurisdiction. 

After tliG decision of the Supreme Court in the Milligan 
case, at the Decemher term of 1865, declaring military 
commissions in the loyal States, for the trial of citizens 
not in the military service or prisoners of war, to be ille- 
gal, no attempt was made to bring the decrees of such 
irregular and unauthorized tribunals before the court. 
Their illegality was accepted without further contest. 
'But during the war there were in some instances arbitrary 
and oppressive acts committed in the loj^al States by military 
officers, particularly those filling the positions of provost- 
marshals, for which redress was sought by civil action. An 
instance of this kind was before the Supreme Court in 
Beckwith vs. Bean, at the October term of 1878. That 
action was brought against the provost-marshal and assist- 
ant provost-marshal of a military district embracing the 
State of Vermont, and was for an assault and battery upon 
the plaintiff, and his imprisonment in the state prison for 
several months — from ^November, 1864, to April, 1865 — 



97 

without process of law niid under cireuinstiinees of ii'reat 
cruelty and op[)ressi()n. it apjieared iVoin tlic cN'idcucc in 
the case that on the 11th of Noveiuber, 18G4, the plain- 
titf, whilst returning from a trip to Boston to liis home in 
Canada, where he temporarily' resided, though a citi/en of 
the United States, was arrested by one of the del'endants, 
the assistant provost-nuirshal, without any warrant <»r pro- 
cess of law, and detained until the following day ; that he 
was tlien forcibly taken by order of the other defendant, 
the provost-marshal, and placed in the state prison at 
AVindsor, where he remained until the 2<;th of April, 1865, a 
period of nearly five months, when he wuh admitted to bail 
and released from imprisonment; that during this period he 
w^as locked up at night, and for the first few days in the day- 
time also, in a narrow and scantily furnished cell, being one 
in which convicts were confined at night ; that after the 
first few days he w^as allowed, upon his complaint of the 
coldness of the cell, to spend tlie day in the shops where 
the convicts worked,. but lie was required to go out and to 
return wlieu they did, and at no time to he out of sight of a 
keeper, and not to go on the corridor or in the yard for ex- 
ercise ; that the food oftered to him was the fare served to 
the convicts, which he could not eat, and that aftei'wards 
he obtained his meals from the keeper's tal)le by paying 
a small sum each week ; and that during this period no 
complaint against him was filed with any nuigistrate ; and 
that he w-as simply held upon the order of the defendants. 
The excuse ofi'ered by them for this imprisonment and 
treatment of the plaintifi" was, that they suspected that he 
had aided or been privy to the desertion from the army of 
two substitutes, who had been furnished upon a contract 
with a substitute broker, and for whom the latter had paid 
$1,200, of wdiich sum |800 had been received by the 
plaintifi" and two others. Suspecting the plaintifi", the 
defendants determined to hold him in the state prison 
until they should coerce him to pay not merely what 
he had received, but what his supposed confederates 



98 

had received also. After he had been in tlie state prison 
for a few days, the provost-marslial called npon him, 
and verbally informed him that he was charged with 
aiding or being privy to the desertion of the substitutes, 
but that he would be discharged on payment of the $800, 
and $25 additional for expenses. The plaintiff protested 
that he was innocent of the charge and demanded a trial. 
He was told in reply that " he could not have a trial, and 
could not get one," but that his case would be reported to 
the officer's superiors. 

During his imprisonment he made constant efforts to 
obtain a trial, or release on bail which he was able and 
willing to furnish. But no trial was allowed him, and not 
until intercession was made on his behalf at Washington 
by a member of Congress was he permitted to give bail 
and be discharged. When the grand jury of the United 
States court subsequently met in Vermont they found no 
cause for prosecution against him, although the provost- 
marshal made a statement of the case to them. 

At the time of his arrest and during his imprisonment 
there was no rebeUion in the State of Vermont against 
the laws and government of the United States, nor were 
there any military operations carried on within its limits. 
The courts of justice, both federal and state, were open and 
in the full exercise of their jurisdiction; and the plaintiff 
was not in the mihtary service or in any way connected 
with such service; and for the offence of which he was sus- 
pected, or for any other offence, could have been brought 
before them on any day of tlie year. By his imprison- 
ment, and the report that he was in the state prison, his 
business was ruined, his personal property and furniture 
were seized by creditors and sacrificed at sheriff's sale, 
and his wife was compelled to leave his home and return 
to her friends in Vermont. 

On the trial of the action, the defendants relied for their 
defence upon the fourth section of the act of Congress of 
March 3d, 1863," relating to habeas corpus, and regulating 



99 

judicial pi'occodiiiii's in certain i-ases;'' and u])(in the act of 
March iM, ISCT, to dci-larc valid and con.'lusivc certain 
proclamations of the President, and acts done in pursuance 
thereof, or of his orders in the suppression of the late re- 
bellion; contending that under them the defendants were 
to be presumed to have acted by the orders of the Presi- 
dent, and that they were thereby jnstitied for the matters 
complained of. And if they were not thus Jnstitied, then 
they sought to give in evidence in mitigation of damages 
the testimony of certain parties, which was discovered 
after the arrest and imprisonment of the plaintiti", tending 
to establish facts, which, if known at that time, would have 
justilied, to some extent, their suspicions as to his com- 
plicity in the escape of the substitutes. The court below, 
in refusing to give certain instructions asked, held that 
the defendants were not justilied imder the acts of Con- 
gress and the proclamations of the President mentioned. 
It also held that evidence of the possible guilt of the 
plaintiti", discovered after the commission of the grievances 
complained of, was inadmissible in mitigation of damages. 

The plaintitr accordingly obtained a verdict and judg- 
ment for $15,000 damages, and the case was carried to the 
Supreme Court. There the Attorney-(Teneral appeared 
for the military officers, and contended, substantially, as 
follows : 

1st. That the defendants were to be presumed to have 
acted, in the arrest and imprisonment of the plaintiti", l)y 
the orders of the President; and that by the acts of Con- 
gress they were justified for the matters complained of. 

2d. That the evidence of the possible guilt of the plain- 
titf, discovered after the commission of the grievances, 
was admissible in mitigation of damages. 

The first proposition was not passed upon, the court ob- 
serving that the instruction requested ignored the evidence 
introduced, that the defendants had, under circumstances 
of oppression and wantonness, and by improper and 
fraudulent representations, procured their superior otficers 



100 

" to continue the imprisonment longer than necessary, and 
prevented them from having a speedy trial " for the oftence 
charged; and on that ground, and not on the ground that 
the acts of Congress justifying the conduct of the defend- 
ants were invalid, or that the orders of the President, if 
issued, would have aftbrded no justification to them, the 
court overruled the objection to tlie ruling of the court 
below. But the second proposition the court sustained, 
and, for the refusal of the court below to admit the subse- 
quently discovered evidence, reversed the judgment and 
ordered a new trial. 

From this decision Judges Clitlbrd and Field dissented. 
Judge Field giving an elaborate dissenting opinion, in 
which the invalidity of the acts of Congress, and of any 
orders of the President, if issued, to justify the conduct 
of the defendants, is conclusively shown. The subject is 
so important, and is so fully considered, that no apology is 
necessary for extended citations from the opinion. Both 
propositions of the Attorney-General were discussed at 
length. 

Upon the first proposition the Judge, after citing the 
acts of Congress, said as follows : 

" These statutes, as is apparent on their face, extend only to acts done 
in compliance with express orders or proclamations of the President. 
They do not cover acts done by persons upon their own will and discre- 
tion, who may have been at the time in the service of the government, 
simply because they were under the general direction of the President as 
commander-in-chief They were not intended to protect against judicial 
inquiry and redress every act of a surbordinate in the military service in 
suppressing or punishing what he may have regarded as a disloyal practice, 
no matter how fiagiTint the outrage he may have thus committed against 
life, liberty, or property. 

" It is not pretended that any proof was produced that the arrest and 
imprisonment of the plaintiff were made under any express order or 
proclamation of the President ; but it is contended by the Attorney- 
General, that under the last clause of the act of 1867 it is to be presumed 
that their action [the defendants'] was authorized by the President, and 
that they are thus relieved from accountability for it. 

"The court below held, that assuming the construction placed by the 
Attorney-General upon the statute to be correct, and that from the com- 



101 

mission of the act the presuni])tion arose that it was authorized by th(3 
President — the act thus presumptively establishing its own validity — the 
presumption in this case was repelled, inasmuch as it api)eared in evi- 
dence by whose direction the orders were issued under which the plain- 
lift' was arrested and imprisoned. It appeared that they never originated 
witli or liad the sanction of tlie President. 

"If however, the court below erred in this resi)oct, there is another and 
a conclusive answer to the defence — one which renders futile and abortive 
all attempts to justify the action of tlie defendants under any presumed 
orders of the President — and that is, that it was not within the compe- 
tency of the President or of Congress to authorize or approve the acts here 
complained of, so as to shield the perpetrators from responsibility. 

'"Persons engaged in the military service of the United States are, of 
course, subject to what is termed military law ; that is, to those rules and 
regulations which Congress has provided for the government of the army 
and the punishment of offences in it. Congress possesses authority un- 
der the Constitution to prescribe the tribunals, as well as the manner in 
which otfenders against the discipline of the army and the laws for the 
protection of its men and officers shall be summarly tried and punished ; 
and to the jurisdiction thus created, all persons in the military service 
are amenable. But that jurisdiction does not extend to persons not in 
the military service, who are citizens of States where the civil courts are 
open. 

" It may be true, also, that on the actual theatre of military operations, 
what is termed martial law, but which would be better called martial 
rule, for it is little else than the will of the commanding general, applies 
to all persons, whether in the military service or civilians. It may be true 
that no one, whatever his station or occupation, can there interfere with or 
obstruct any of the measures deemed essential for the success of the army, 
without subjecting himself to immediate arrest and summary puni.shment. 
The ordinary laws of the land are there superseded by the laws of war. The 
jurisdiction of the civil magistrate is there suspended, and military au- 
thority and force are substituted. The success of the army is the controll- 
ing consideration, and to that everything el.se is required to bend. To 
secure that success, persons may be arrested and confined, and property 
taken and used or destroyed at the command of the general, he being re- 
spon.sible only to his superiors for an abuse of his authority. His orders, 
from the very necessity of the case, there constitute legal justiiication for 
any action of his officers and men. This martial rule — in other words, 
this will of the commanding general, except in tlie country of the enemy 
occupied and dominated by the army — is limited to the field of military 
operations. In a country not hostile, at a distance from the movements 
of the army, where they cannot be immediately and directly interfered 
with, and the conrts are open, it has no existence. 

" The doctrine sometimes advanced by men, with more zeal than Avis- 
doni, that whenever war exists in one part of the country, the constitu- 



102 

tional guaranties of personal liberty, and of the rights of property, are 
suspended everywhere, has no foundation in the principles of the com- 
mon law, the teachings of our ancestors, or the langiiage of the Constitu- 
tion, and is at variance with every just notion of a free government. 
Our system of civil polity is not such a rickety and ill-jointed structure, 
that when one part is disturbed the whole is thrown into confusion and 
jostled to its foundation. The fact that rebellion existed in one portion 
of the country could not have the effect of superseding or suspending 
the laws and Constitution in a loyal portion widely separated from it. 
The war in the Southern States did not disturb Vermont from her con- 
stitutional ijropriety. She did not assent to the theory that war and dis- 
turbance elsewhere could destroy the security given by her laws and 
government. The same juridical institutions, and the same constitu- 
tional guaranties for the protection of the personal liberty of the citizen, 
with all the means for their enforcement, remained there as completely as 
before ; and the Constitution and laws of the United States were as capa- 
ble of enforcement in all their vigor in that State during the war as at 
any time before or since. The arrest and imprisonment of the plaintiff, 
even if made by direct order of the President, were, therefor, in plain 
violation of the fifth constitutional amendment, which declares that no 
person shall be deprived of his liberty without due process of law. No 
mere order or proclanuition of the President for the arrest and imprison- 
ment of a person not in the military service, in a State removed from the 
scene of actual hostilities, where the courts are open and in the unob- 
structed exercise of their jurisdiction, can constitute due process of law ; 
nor can it be made such by any act of Congress. Those terms, as is 
known to every one, were originally used to express what was meant by 
the terms 'the law of the land ' in Magna Charta, and had become syn- 
onymous with them. Tliey were intended, as said by this court, ' to se- 
cure the individual from the arbitrary exercise of the powers of govern- 
ment, unrestrained by the established principles of private right and dis- 
tributive justice.'* They were designed to prevent the government from 
depriving any individual of his rights except by due course of legal pro- 
ceedings, according to those rules and principles established in our sys- 
tems of jurisprudence for tlie protection and enforcement of the rights of 

all persons. 

" To me. therefore, it is a marvel, that in this country, under a Constitu- 
tion ordained by men who were conversant with the principles of Magna 
Charta, and claimed them as their birthright — a Constitution which de- 
clares in its preamble that it is established ' to secure the blessings of lib- 
erty to ourselves and our posterity ' — it could ever be contended that an 
order of the Executive, issued at his will, for the arrest and imprisonment 
of a citizen, where the courts are open and in the full exercise of their 
jurisdiction, is due process of law, or could ever be made such bj^ an act of 

* Bank of Columbia vs. Okely, 4 Wheat., 235. 



103 

CongTcss. I certainly never supposed that such a proposition eould be se- 
riously asserted before the highest triljunal of the Kepublie by its chief 
legal officer. I had supposed that we could justly claim that in America, 
under our republican government, the personal liberty of the citizen was 
greater and better guarded than that of the subject in England. It is 
only the extraordinary claim made by the counsel of the government in 
this case which justifies any argument in support of principles so funda- 
mental and heretofore so universally recognized. It may be necessary at 
times with respect to them, as it is necessary at times with respect to ad- 
mitted principles of morality, to re-state them in order to rescue them 
from the forgetfulness caused liy their universal admission. 

" The assertion that the power of the government to carry on the war 
and suppress the rebellion, would have been crippled and its efficiency 
impaired, if it could not have authorized the arrest of persons and their 
detention without examination or trial, on suspicion of their complicity 
with the enemy, or of disloyal practices, rests upon no foundation whatever, 
so far as Vermont was concerned. There was no invasion or insurrection 
there, nor any disturbance which obstructed the regular administration of 
justice. A claim to exemption from the restraints of law is always made 
in support of arbitrary power, whenever unforeseen exigencies arise in the 
aftairs of government. It is inconvenient ; it causes delay ; it takes time 
to furnish to committing magistrates evidence which, in a country where 
personal liberty is valued and guarded by constitutional guaranties, 
Avould justify the detention of the suspected ; and, therefore, in such ex- 
igencies, say the advocates of the exercise of arbitrary power, the evi- 
dence should not be required. A doctrine more dangerous than this to 
free institutions could not be suggested by the wit of man. The proceed- 
ings required by the general law for the arrest and detention of a party 
for a public ofitnce— the charge under oath, the examination of witnesses 
in the presence of the accused, with the privilege of cross-examination, 
and of producing testimony in his favor, creating the objectionable de- 
lays — coiistitute the shield and safeguard of the honest and loyal citizen. 
They were designed not merely to insure ijunishment to the guilty, but 
to insure protection to the innocent, and without them every one would 
hold his liberty at the mercy of the government. ' All the ancient, hon- 
est, juridical principles and institutions of England,' says Burke — and it 
is our glory that we inherit them — ' are so many clogs to check and retard 
the headlong course of violence and oppression. They were invented for 
tliis one good purpose, that what was not just should not be convenient.' * 
Whoever, therefore, favors their subversion or suspension, except when in 
the presence of actual invasion or insurrection the laws are silent, is con- 
sciously or unconsciously an enemy to the Republic. 

" If neither the order of the President nor the act of Congress could 
suspend, in a State where war was not actually waged, any of the guar- 

* Letter to the Sheriffs of Bristol. 



10-1 

anties of the Coustitution intended tor the protection of the plaintiff 
from nnlawfnl arrest and imprisonment, neither could they shield the de- 
fendants I'rom responsibility in disregarding them. Protection against 
the deprivation of liberty and property would be defeated if remedies for 
redress, where such deprivation was made, could be denied." 

Ill answer to the second proposition of the Attorne}'- 
General, that evidence of the possible guilt of the plain- 
tiff discovered after the commission of the grievances com- 
jDlained of, was admissible in mitigation of damages, the 
Judge said as follows : 

"As facts not known at that time [when the grievances were com- 
mitted] could not have inlluenced the conduct of the defendants, it is 
difficult to comprehend how proof of those facts could be received to 
show the motives — of malice or good faith — with which they then acted. 

" Independently of this consideration, it seems to me, that the evidence 
of the guilt or innocence of the plaintitf was entirely immaterial. Assum- 
ing that he was guilty of the complicity alleged — thai he had admitted 
his guilt to the defendants — that circumstance would not have justified 
their conduct in the slightest degree. They would have been equally 
bound upon that assumption, as they were in fact bound — no more and 
no less — to take the plaintiff before the pi'oper magistrate to be proceeded 
against according to law. To keep him for nearly six months in the 
state prison among convicts, without taking him before the proper officer 
to be held to bail or bi'ought to trial, was a gross outrage upon his rights, 
whether he were guilty or innocent. There were magistrates in every 
county of the State competent to act upon the charge, and the district at- 
torney was ready to take control of all cases against the laws of the 
United States and prosecute them. The defendants not only omitted 
this plain, Imperative duty, but detained the plaintiff in prison, not with 
a view to punish him for the offence of which they suspected him to be 
guilty, but to coerce from him payment of money alleged to be due by him 
and others to a substitute broker. "Where is the law or reason for allow- 
ing one, who by force holds another in confinement in order to extort the 
payment of money, to show in extenuation of his conduct that the man 
had been guilty of some offence against the law ? The answer in all such 
cases should be, that the law attaches the proper penalties to its viola- 
tion, and appoints the ministers bj^ whom those penalties are to be en- 
forced ; and whenever they can act, whoever usurps their authority and 
attempts to punish supposed offenders, in aiiy other mode than that pro- 
Aided by law, is himself a criminal. For, as it was said by a distin- 
guished statesman and jurist of England, when the laws can act, 'every 
other mode of punishing supposed crimes is itself an enormous crime.' 

" The doctrine announced by the decision of the court in this case is 
nothing less than this: that a gross outrage upon the rights of a person 



105 

may be extenuated or excused by proof that tlie outra<;ed party had him- 
self been guilty of some crime, or, at least, that the perpetrators of the 
outraiie had reason to suspect that he had. This doctrine is prejitiant 
with evil. I know not why, under it, the violence of inol)s, excited 
ajiainst fiuilty or suspected parties, may not find extenuation. Let sucli 
a doctrine be once admitted, and a greater l)Iow will be dealt to personal 

security than any given to it for a century. 

'"It will appear from an examination of the adjudged cases, as it must 
on princijile, that when illegal measiires have been taken to redress pri- 
vate wrongs, or to punish tor oifences against the public, it is inadmissi- 
ble to prove, in mitigation of actual or exemplary damages, that the 
party injured was guilty of the otfence or misconduct constituting the 
l)rovocation to the illegal measures, except where the provocation is of a 
personal character calculated to excite passion, and so recent as to create 
the presumption that the acts complained of were committed under the 

influence of the p;ission thus excited. -They are founded upon the 

plain principle, that no one can be allowed to undertake the punishment 
of wrongdoers according to his own notions ; that the administration of 
punitive ju.stice for all offences is conlided by the law to certain public 
otiicers, and whoever a.ssumes their functions without being authorized, 
usurps the prerogative of sovereign power and becomes himself amena- 
ble to puni.shment. He shall not be permitted to set up the real or sup- 
posed oifences of others to justify his own wrong." 



PROTEt'TIOX TO OFFICERS AND SoLDIERS OF THE ArMY OF 

THE United States in the Enemy's Country during 
THE War, 

In the prosecution of the late war the arniie.'^ of tlie 
United Spates were, as a matter of course, sent into the 
States in insurrection. The destruction wliich nocessaril}^ 
attended tlieir inarch, too-other with acts of violence of 
individual soldiers, ^^■hieh no disci[)line could wholly pre- 
vent, produced the natural result — -great hitterness and 
hostility on the part of the inhabitants of the invaded 
country. With the close of the war this feeling did not 
entirely cease, and wliere a crime had been committed the 
wdiole community would naturally desire to have its per- 
petrator punished. Where a pei'sonal wrong had been 
sutfered, or a wanton injury to private property com- 
mitted, the sutlx'rer would naturally consider the possi- 



106 

bility of redress in the courts. Hence criminal prosecu- 
tions were in many instances hegmi against parties who 
had been in tlie federal armies for alleged offences during 
the war, and numerous private suits were brought for in- 
juries to persons and property. Some of these found their 
way to the Supreme Court, where decisions were rendered 
extending protection to the oflicers and soldiers of the 
army against prosecution in the tribimals of the enemy's 
country for otfences or injuries committed there by them 
during the war. 

The first of these cases was that of Coleinan from Ten- 
nessee, which was before the court at the October term of 
1878. Coleman was indicted in October, 1874, in one of 
the district courts of Tennessee for the murder of a young 
woman in March, 1865. To the indietnient he pknided 
not guilty, and a foi-mer conviction for the same offence 
by a general court-martial roguhirly convened for his trial 
at Knoxville, Tennessee, on the 27th of March, 1865, the 
United States at that time, and when the oftence w^as com- 
mitted, occupying with their armies East Tennessee as a 
military district, and the defendant being a regular soldier 
in their military service, subject to the articles of w^ar, 
mihtary orders, and such military laws as were there in 
force by their authority, alleging that he was arraigned 
by that tribunal up(m a charge of murder, in having killed 
the same person mentioned in the indictment, and was 
afterwards, on the 9th of May, 1865, tried and convicted 
of the offence and sentenced to death by hanging, and 
that said sentence was still standing as the judgment of 
the court-martial, approved as required by law in such 
cases, without any other or further action thereon. He, 
therefore, prayed that the indictment might be quashed. 

The local court held this plea bad on the ground, among 
others, that the defendant's conviction of the ofience 
charged by a court-martial, under the laws of the United 
States, on the 9th of May, 1865, was not a bar to the in- 
dictment for the same offence; because by the murder 



107 

alle2:ed he was also guilty of an oflencc against the laws 
of Tennessee, Tie was thereupon put upon his trial in 
that court, convicted of murder, and sentenced to death. 
On ai)peal to the Supreme Court of the State the judgment 
was aHirnicd, and the case was taken to the Supreme 
i\)\wt ()!' the Tnited States. It was there argued as though 
its determination (lei)ended upon the construction given 
to the oOth section of the act of Congress of Nhirch od 
18<!;-3,to enroll and call out the national forces, the defend- 
ant's counsel contending that the section vested in general 
courts-martial ami military commissions the right to pun- 
ish for the oftences designated therein, when comvjiitted 
in time of war, by persons in the military service of the 
United States and subject to the articles of war, to the 
exclusion of jurisdiction over them hy the state courts. 
That section enacted: "That in time of war, insurrection, 
or rel)ellion, murder, assault and battery with an intent to 
kill, manslaughter, mayhem, wounding by shooting or 
stabbing with an intent to commit murder, robbery, arson, 
burglary, rape, assault and battery with an intent to com- 
mit rape, and larceny, shall be punishable by the sentence 
of a general court-martial or military commission, when 
committed by persons who are in the military service of 
the United States, and subject to the articles of war; and 
the punishment for such offences shall never be less than 
those inflicted by the law\s of the State, territory, or district 
in which they may have been committed."* But in de- 
livering the opinion of the court, Judge Field replied as 
follows : 

" The section is part of au act containing numerous provisions for the 
enrollment of the national forces, designating who shall constitute such 
forces ; who shall be exempt from military service ; when they shall he 
drafted for service ; when substitutes may be allowed ; how deserters and 
spies and persons resisting the draft shall be punished ; and many other 
particulars, having for their object to secure a large force to carry on the 
then existing war, and to give efficiency to it when called into service. 
It was enacted not merely to insure order and discipline among the men 

* 12 U. S. Stats., p. 736: 



108 

composing those forces, but to protect citizens not in the military service 
from the violence of sokliei-s. It is a matter well known that the march 
even of an army not hostile is often accompanied with acts of violence and 
pillage by straggling parties of soldiers, wliich the most rigid discipline 
is hardly able to prevent. The offences mentioned are those of most 
common occurrence, and the swift and summary justice of a military 
court was deemed necessary to restrain their commission. 

"£ut the section does not make the jurisdiction of the military tribu- 
nals exclusive of that of the state courts. It does not declare that soldiers 
committing the oifences named shall not be amenable to punishment by 
the state courts. It simply declares that the offences shall be ' punishable,' 
not that they shall be punished by the military courts ; and this is merely 
saying that they may be thus punished. 

" Previous to its enactment the offences designated were punishable 
by the state courts, and persons in the military service who committed 
them Avere delivered over to those courts for trial ; and it contains no 
words indicating an intention on the part of Congress to take from them 
the jurisdiction in this respect which they had always exercised. With 
the known hostility of the American people to any interference by the 
military with the regular administration of justice in the civil courts, no 
such intention should be ascribed to Congress in the absence of clear and 
direct language to that effect. 

" We do not mean to intimate that it was not within the competency 
of Congress to confer exclusive jurisdiction upon military courts over 
offences committed by persons in the military service of the United 
States. As Congress is expressly authorized by the Constitution ' to raise 
and support armies,' and ' to make rules for the government and regu- 
lation of the land and naval forces,' its control over the whole subject of 
the formation, organization, and government of the national armies, in- 
cluding therein the punishment of offences committed by persons in the 
military service, would seem to be plenary. All we now afhrm is that 
by the law to which we are referred, the 30th section of the enrollment 
act, no such exclusive juri.sdiction is vested in the military tribunals 
mentioned. No public policy would have been subserved by investing 
them with such jurisdiction, and many reasons may be suggested against 
it. Persons in the military service could not have been taken from the 
army by process of the state courts without the consent of the military 
authorities; and, therefore, no impairment of its efficiency could arise 
from the retention of jurisdiction by the state courts to try the offences. 
The answer of the military authorities to any such process would have 
been : ' We are empowered to try and punish the persons who have com- 
mitted the offences alleged, and we will see that justice is done in the 
premises.' Interference with the army would thus have been impossible; 
and offences committed by soldiers, discovered after the army had marched 
to a distance, when the production of evidence before a court-martial 
would have been difficult, if not impossible, or discovered after the war 



100 

■was over and the army disliaiided, would iiol <;o uniuiiiislicd. Surely 
Cono-resfs eould not liavr intended that in sueli casrs the jiuilly should 
go free. 

" In denyinjito the military tribunals exclnsive jniisdietiDn, undtr tin- 
section in ([nestion, over the offences mentioned, when committed by per- 
sons in the military service of the United States and suhjcet to the ar- 
ticles of war, we have reference to them when they were held in States oe- 
cnpying, as members of the Union, their normal and constitvitional rela- 
tions to the federal government, in which the supremacy of that govern- 
ment was recognized and the civil courts wei-e open and in the undis- 
turbed exercise of their j urisdiction. When the armies of the United States 
were in the territory of the insurgent States, banded together in hostility 
to the national government and making war against it ; in other words, 
when the armies of the United States were in the enemy's country the 
military tribunals mentioned had, under the laws of war, and the author- 
ity conferred by the section named, exclusive jurisdiction to try and pun- 
ish offences of every grade committed by persons in the military service. 
Officers and soldiers of the armies of the Union were not subject during 
the war to the laws of the enemy or amenable to his tribunals for offences 
committed by them. They were answerable only to their own gov- 
ernment, and only l>y its laws, as enforced by its armies, could they be 
punished. 

" It is well settled that a foreign army i)ermitted to march through a 
friendly country, or to be stationed in it, by authority of its government 
or sovereign, is exempt from the civil and criminal jurisdiction of the place. 
The sovereign is understood, said this court in the celebi-ated case of The 
Exchange, to cede a portion of his territorial jurisdiction when he allows 
the troops of a foreign prince to pass through his dominions : — ' In such 
case, without any express declaration waiving jurisdiction over the army 
to which this right of passage has been granted, the sovereign who should 
attempt to exercise it would certainly be considered as violating his faith. 
By exercising it, the purpose for which the free passage was granted 
would be defeated, and a portion of the military force of a foreign inde- 
pendent nation would be diverted from those national objects and duties 
to which it was applicable, and would be withdrawn Irom the control of 
the sovereign whose power and whose safety might greatly depend on re- 
taining the exclusive command and disposition of this force. The grant 
of a free passage, therefore, implies a waiver of all jurisdiction over the 
troops during their passage, and permits the foreign general to use that 
discipline and to inflict those punishments which the government of his 
army may require.' 

"If an army marching through a friendly country would thus be 
exempt from its civil and criminal jurisdiction, a fortiori \\ould an army 
invading an enemy's country be exempt. The fact that war is waged be- 
tween two countries negatives the possibility of jurisdiction being exer- 
cised by the tribunals of the one country over persons engaged in the 



110 

military service of the other for offences committed while in such ser- 
vice. Aside from this want of jurisdiction there would be something in- 
congruous and absurd in permitting an oiiicer or soldier of an invading 
army to be tried by his enemy, whose country he had invaded. 

" The tact that when the offence was committed, for which the defend- 
ant wa.s indicted, the State of Tennessee was in. the military occupation 
of the United States, with a military governor at its head, appointed by 
the President, cannot alter this conclusion. Tennessee was one of the in- 
surgent States forming the organization known as the Confederate States, 
against which the war was waged. Her territory was enemy's country, 
and its character in this respect was not changed until long afterwards. 

" The doctrine of international law on the effect of military occupa- 
tion of enemy's territory upon its former laws is well established. 
Though the late war was not between independent nations, but between 
different portions of the same nation, yet having taken the proportions 
of a territorial war, the insurgents having become formidable enough to 
be recognized as belligerents, the same doctrine must be held to apply. 
The right to govern the territory of the enemy during its military occu- 
pation is one of the incidents of war, being a consequence of its acquisi- 
tion ; and the character and form of the government to be established de- 
pend entirely upon the laws of the conquering State or the order of its 
military commander. By such occupation the political relations between 
the people of the hostile country and their former government or sover- 
eign are for the time severed ; but the municipal laws, that is, the laws 
which 'regulate private rights, enforce contracts, punish crime, and regu- 
late the transfer of property, remain in full force, so far as they affect 
the inhabitants of the country among themselves, unless suspended or 
superseded by the conqueror. And the tribunals by which the laws are 
enforced continue as before unless thus changed. In other words, the 
municipal laws of the State and their administration remain in full force 
so far as the inhabitants of the country are concerned unless changed by 
the occupying belligerent. * 

" This doctrine does not affect in any respect the exclusive character of 
the jurisdiction of the military tribunals over the officers and soldiers of 
the army of the United States in Tennessee during the war; for, as al- 
ready said, they were not subject to the laws, nor amenable to the tribu- 
nals of the hostile country. The laws of the State for the punishment 
of crime were continued in force only for the protection and benefit of 
its own people. As respects them, the same acts which constituted 
offences before the military occupation constituted offences afterwards; 
and the same tribunals, unless superseded by order of the military com- 
manders, continued to exercise their ordinary jurisdiction. 

" If these views be correct, the plea of the defendant of a former con- 
viction for the same offence by a court-martial under the laws of the 
United States was not a proper plea in the case. Such a plea admits the 

* Halleck's Int. Law, chap, xxxiii. 



Ill 

jurisdiction of the criininal court to try tlu' oll'cncc if it wore not for the 
former conviction. Its inapplicability, however, will not prevent our 
,uivin<i- effect to the ohjection which the ilefendant in tliis irregular way 
attempted to raise, that the state court had uo Jurisdiel iou to try au.l pun- 
ish liini for tlu- oirnue allejied. The judgment aud couviclion in Die 
criminal court should have been set aside and the indictment ([uashed 
for waut of jurisdiction. Their effect was to defeat an act doiu' under tlie 
authority of the United States hy a tribunal of officers ai>i)ointed under 
the law enacted for the government and rcfiulation of the army in time 
of war, and whilst that army was in a hostile and conquered State. The 
judgment of that tribunal at the time it was rendered, as well as the per- 
son of the defendant, were beyond the control of the State of Tennessee. 
The authority of the United States was then sovereign and their juris- 
diction exclusive. Nothing Avhich has since occurred has diminished that 
authority or impaired the efficacy of that judgment. 

" In thus holding, we do not call in question the correctness of the 
general doctrine asserted by the Supreme Court of Tennessee, that the 
same act may, in some instances, be an offence against two governments, 
and that the transgressor may be held liable to punishment by both when 
the punishment is of such a character that it can be twice inflicted, or by 
either of the two governments if the punishment, from its nature, can 
be only once suft'ered. It may well be that the satisfaction which the 
transgressor makes for the violated law of the United State-s is no atone- 
ment for the violated law of Tennessee. But here there is no case pre- 
sented for the application of the doctrine. The laws of Tennessee with 
regard to offences and their punishment, which were allowed to remain 
in force during its military occupation, did not apply to the defendant, 
as he was at the time a soldier in the army of the United States and sub- 
ject to the articles of war. He was responsible for his conduct to the 
laws of his own government only as enforced hy the commander of its 
army in that State, without whose consent he could not even go beyond 
its lines. Had lie been caught by the forces of the enemy, after com- 
mitting the offence, he might have been subjected to a summary trial and 
l)unishment by order of their commander, and there would have been no 
just ground of complaint, for the marauder and assassin are not protected 
by any usages of civilized wartare. But the courts of the State, whose 
regular government was superseded, and whose laws were tolei-ated from 
motives of convenience, were without jurisdiction to deal with him." 

The Supreme Cotirt of the United States accordingly 
reversed the judgment of the Supreme Court of Tennes- 
see; hut it did not allow the criminal to escape. It added 
to its reversal the following direction : 

" But as the defendant was guilty of murder, as clearly appears not 
only by the evidence in the record in this case, but in the record of the 
proceedings of the court-martial, a murder committed, too, under circum- 



112 

stances of great atrocity, and as he was convicted of the crime by that 
court and sentenced to death, and it appears by his plea that said judg- 
ment was duly approved and still remains without any action having 
been taken upon it, he may be delivered up to the military authorities 
of the United States, to be dealt with as required by law." 

The prisoner was soon afterwards turned over to tlie 
military authorities of the United States, when his punish- 
ment was commuted to imprisonment for Rfe at hard kibor, 
and he is now tlius imprisoned. 



In the ease of Dow vs. Johnson, at the October term (^f 
1879, the question came before the court whether an oihcer 
of the army of the United States, whilst in service during 
the late war in the enemy's country, was lial)le to a civil 
action in the courts of that country for injuries resulting 
from acts of war ordered by him in his military character; 
and it was held that he was not thus liable, and that he 
could not be called upon to justify or explain his military 
conduct in a civil tribunal upon any allegation of the in- 
jured party that the acts complained of were not justified 
by the necessities of war. He was responsible only to his 
own government, and only by its laws, administered by its 
authority, could he be called to account. 

The case was one which excited a good deal of interest, 
and the question presented was elaborately discussed. The 
defendant, Neal Dow, was a brigadier-general in the army 
of the United States, and in 1862 and 1863 was stationed 
in Louisiana in command of Forts Jackson and St. Philip, 
on the Mississippi River, below N"ew Orleans. These 
forts surrendered to the forces' of the United States in 
April, 1 862. The fleet under Admiral Farragut had passed 
them and reached ^ew Orleans on the 25th of the month, 
and soon afterwards the city was occupied by the forces of 
the United States under General Butler. On taking p(.>s- 
session of the city, the General issued a proclamation, 
bearing date on the 1st of May, 1862, in wdiich, among 
other thinics, he declared that until the restoration of the 



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authority of the I'liitetl r<tate.s the 
by inai-tial hiw; that all disorders, di 
and erinies of an aLi'u'ra\ated natii 
forces or laws of the United States 
a luihtary court lor trial and jtuni 
misdemeanors would l)e subjei't to tl 
if it desired to act ; and that civil * 
would •• l)e referred to the ordinai_ 
this prockniatiou, the Sixth District Court of the City and 
Parish of Xew Orleans was aUowed to continue in exist- 
ence, the judge haA'ing taken the oath of allegiance to the 
United States. 

In January, IHtJo, General Dow was sued in that court 
by one Johnson, who set forth in his petition that he was 
a citizen of Xew York, and for several years had been the 
owner of a plantation and slaves in Louisiana, on the Mis- 
sissippi Ei^'er, about forty-three miles from Xew Orleans; 
that on the sixth of September, 1862, during liis tempo- 
rary absence, the steamer Aver}-, in charge of Captain 
Snell, of Company B, of the Thirteenth ^hline Regiment, 
wuth a force under his command, had stopped at the plan- 
tation, and taken from it twenty-five hogsheads of sugar; 
and that said force had plundered the dwelling-liouse of 
the plantation and carried off a silver pitcher, half a dozen 
silver knives, and other table ware, the private property 
of the phuntiif, the whole property taken amounting in 
value to |1,G11.29; that these acts of Captain Snell and 
of the officers and soldiers under his command, which the 
petition characterized as "illegal, w^anton, oppressive, and 
unjustifiable/' were perpetrated under a verbal and secret 
order of Brigadier-Greneral Xeal Dow, then in the service 
of the United States, and in command of Forts Jackson 
and St. f'hilip, who, l)y his secret orders, which tlie peti- 
tion declared were " unauthorized by liis stiperiors, or by 
any provision of martial law, or l)y any requirements of 
necessity growing out of a state of war," wantonly abused 
his powder and inflicted upon the plaintiff the wrongs of 
8 



114 

which ho complahicd; and, therot'ore, he pvajed judgment 
against the General for tlie vahie of the property. 

To this suit General Dow, though personally served 
with citation, made no appearance. He may have thought, 
as the Supreme Court in its opinion suggests, that during 
the existence of the war, in a district where insurrection 
had recently heen suppressed, and was only kept from 
breaking out again by the presence of the armed forces 
of the United States, he was not called upon by any rule of 
law to answer to a civil tribunal for his military orders, 
and satisfy it that they were authorized by his superiors, 
or by the necessities growing out of a state of war. He 
may have supposed that for his military conduct he was 
responsible only to his military superiors and the govern- 
ment whose othcer he was. 

Be that as it may, or what ever other reason he may 
have had, he made no response to the petition ; he was 
therefore defaulted. The Sixth District Court af the Par- 
ish of New Orleans did not seem, as the Supreme Court 
observes, to consider that it was at all inconsistent with his 
duty, as an otticer in the army of the United States, to leave 
his post at the forts, which guarded the passage of the 
Mississippi, nearly a hundred miles distant, and attend upon 
its summons to justify his military orders, or seek coun- 
sel and procure evidence for his defence. ISTor did it ap- 
pear to have occurred to the court that if jurisdiction over 
him was recognized there might spring up such a multi- 
tude of suits as to keep the othcers of the army stationed 
in its district so busy that they would have little time to 
look after the enemy and guard against his attacks. The de- 
fault of the General being entered, testim.ony was received 
showing that the articles mentioned were seized by a mili- 
tary detachment sent by him and removed from the plan- 
tation, and that their value amounted to $1,454.81. Judg- 
ment was thereupon entered in favor of the plaintiti" for 
that sum with interest and costs. It bore date April 9th, 
1863. 



115 

Updii tliis jiidii'iiuMit ;iii iu'tion wa- lnMn<j,hl in the ( 'ircuit 
Court of the rniti'd States for tlu' District of Maine. Tlie 
deelaratioii stated llie reeoverv ol' the Judi;-iiieiil ineidioiied 
and made [»rofei't ot" an authentieate(l i';>j)y. To it the de- 
fendant |dea(U_'d tlie i^'eneral issue, mil fir/ rei-ord, and eer- 
taiu spi'eial plea-, theol/jeet of whieh was to show that the 
(hsti'ict eoui't Liad no jurisdietion to i'en(h'i' the judu'- 
)nent in (pii-stion, for the rt'ason that at the time its district 
was a part of tlie country in insurrection auainst the gov- 
ernment of the ITnitod States, and making war against it, 
and was held in suhjeetion l)y its armed f >rces ; that the 
defendant was then a hrigadier-general in the military ser- 
vice of the Ignited States, coniuiissioned l)y the I'resident, 
and acting in that State under his orders and the ai'ticles of 
war; and was authorized 1)\' the general order of the Presi- 
dent of July 22d, 1862, to seize and use any [)roperty, real 
or personal, which might be necessary or eonv^enient for 
his command as supplies, or for other military purposes; 
that by his order the troops under his command seized 
from the plaintili" then a citizen of that State, certain chat- 
tels necessaiy and convenient for su[iplies for the army 
of the United States, and other military purposes ; and 
that for that seizure the action was brought in the Sixth 
District Court of New (Orleans against him, in which the 
judgment in question was rendered ; that the general 
government had deprived that court of all jurisdiction, 
except such as was conferred by the commanding general, 
and that no jurisdiction over persons in the military ser- 
vice of the United States for acts performed in the line 
of their duty was ever thus conferred upon it. 

Upon these pleas the main question stated above was 
discussed. In deciding it, Judge Field, who gave tlie 
opinion of the court, after dis[K)sing of a prelinunary ob- 
jection, said as follows : 

" This brings us to the consideratiou of the main question involved, which 
we do not regard as at all difficult of solution, when reference is had to the 
character of the late war. The war, though not between independent 
nations, but between different portions of the same nation, was acoompa- 



116 

iiied by the geueral incidents of an international war. It was waged be- 
tween people occupying different territories, separated from each other by 
well-defined lines. It attained proportions seldom reached in the wars of 
modern nations. Armies of greater magnitude and more formidable in 
their equipments than any known in the present century were put into 
the field by the contending parties. The insurgent States united in an or- 
ganization known as the Confederate States, by which they acted through 
a central authority guiding their military movements ; and to them bel- 
ligerent rights were accorded by the federal government. This was 
shown in the treatment of captives as prisoners of war, the exchange of 
prisoners, the release of officers on parole, and in numerous arrangements 
to mitigate as far as possible the inevitable suft'erings and miseries attend- 
ing the conflict. The people of the loyal States on the one hand, and the 
people of the Confederate States on the other, thus became enemies to 
each other, and were liable to be dealt with as such without reference to 
their individual opinions and dispositions. Commercial intercourse and 
correspondence between them were prohibited, as well by express enact- 
ments of Congress as by the accepted doctrines of public law. The enforce- 
ment of contracts previously made between them was suspended, part- 
nerships were dissolved, and the courts of each belligerent were closed to 
the citizens of the other, and its territory was to the other enemies' coun- 
try. When, therefore, our armies marched into the country which ac- 
knowledged the authority of the Confederate government, that is, into the 
enemy's country, their officers and soldiers were not subject to its laws, 
nor amenable to its tribunals for their acts. They were subject only to 
their own government, and only by its laws, administered by its author- 
ity, could they be called to account. As was observed in the recent case 
of Coleman vs. Tennessee, it is well settled that a foreign army, permitted 
to march through a friendly country, or to be stationed in it by authority 
of its sovereign or government, is exempt from its civil and criminal 
jurisdiction. The law was so stated in the celebrated case of The Ex- 
change, reported in the seventh of Cranch. Much more must this exemp- 
tion prevail where a hostile army invades an enemy's country. There 
would be something singularly absurd in permitting an officer or soldier 
of an invading army to be tried by his enemy, whose country it had in- 
vaded. The same reasons for his exemption from criminal prosecution 
apply to civil proceedings. There would be as much incongruity, and as 
little likelihood of freedom from the irritations of the war, in civil as in 
criminal proceedings prosecuted during its continuance. In both in- 
stances, from the very nature of war, the tribunals of the enemy must be 
without jurisdiction to sit in judgment upon the military conduct of the 
officers and soldiers of the invading army. It is difficult to reason upon 
a proposition so manifest ; its correctness is evident upon its bare an- 
nouncement, and no additional force can be given to it by any amount of 
statement as to the proper conduct of war. It is manifest that if officers 
or soldiers of the army could be required to leave their ;posts and troops. 



117 

upon the snmiuons oi' cvory local tribunal, on pain of a.jndgment by tic- 
fault against llicni. which at the termination of hostilities could be en- 
forced hy suit in tlicir own States, the elliciency of the army as a hostile 
force would be utterly destroyed. Nor can it make any ditiference with 
what denunciatory epithets the comphiininji Jtarty may characterize their 
conduct. If su6'h epithets could confer jurisdiction they would always 
be su])plied in every variety of form. An iniiabitant of a boraVjarded 
city would have little licsitation in declaring the bombardment unneces- 
sary and cruel. Wouhl it be pretended that he could call the command- 
ing general, who ordered it, before a local tribunal to show its necessity 
or be mulcted in damages? The owner of supplies seized, or property 
destroyed, wonld have no difficulty, as human nature is constituted, in 
believing and affirming that the seizure and destruction were wanton and 
needless. All this is too plain for discussion and will be readily admitted. 

"Nor is the po.sition of the invading belligerent affected, or his relation 
to the local tribunals changed, by his temporary occupation and domina- 
tion of any portion of tlie enemy's country. As a necessary consequence 
of such occupation and domination, the political relations of its people to 
their former government are, for the time, severed. But tor their pro- 
tection and benefit, and the protection and benefit of others not in the 
military service ; or, in other word.s, in order that the ordinary pursuits 
and liusiness of society may not be unnecessarily deranged, the munici- 
pal laws, that is, such as affect ]3rivate rights of persons and property, 
and provide for the punishment of crime, are generally allowed to con- 
tinue in force, and to be jidministered b}^ the ordinary tribunals as they 
were administered before the occupation. Tliey are considered as con- 
tinuing unless suspended or superseded by the occupying belligerent. 
But their continued enforcement is not for the protection or control of 
the army or its officers or soldiers. Tliese remain subject to the law's of 
war, and are responsible for their conduct only to their own government, 
and the tribunals by which those laws are administered. If guilty of 
Avanton crueltj' to persons, or of unnecessary spoliation of propert.y, or of 
other acts not authorized bj- the laws of war, the}' ma}' be tried and pun- 
ished by the military tribunals. They are amenable to no other tribunal, 
except that of public opinion, which, it is to be hoped, will always brand 
with infamy all who authorize or sanction acts of cruelty and oppression. 

" If, now, we apply the views thus expressed to the case at bar, there 
will be no difficult}- in disposing of it. The condition of New Orleans 
and of the district connected with it, at the time of the seizui-e of the 
property of the plaintiff and the entry of the judgment against Dow, was 
not that of a country restored to its normal relations to the Union, by 
the fact that they had been captured by our forces, and w^ere held in 
subjection. A feeling of intense hostility against the government of the 
Union prevailed as before with the people, which was ready to break out 
into insurrection upon the appearance of the enemy in force, or upon the 
withdrawal of our troops. The country was under martial hnv; and its 



118 

armed occupation gave no jurisdiction to the civil tribunals over the offi- 
cers and soldiers of the occupying army. They "were not to be harassed 
and mulcted at the complaint of any person aggrieved by their action. 
The jurisdiction which the district court was authorized to exercise over 
civil cases between parties, by the proclamation of General Butler, did 
not extend to cases against them. The third special plea alleges that the 
court was deprived by the general government of all jurisdiction except 
such as wa.s conferred by the commanding general, and that no jurisdic- 
tion over persons in the militarj^ service for acts performed in the line of 
their duty was ever thus conferred upon it. It was not for their control 
in any way, or tiie settlement of complaints against them, that the court 
was allowed to continue in existence. It was, as already stated, for the 
jjrotection and benefit of the inhabitants of tlie conquered country and 
otliers there not engaged in the military service. 

" If private property there was taken by an officer or a soldier (jf the 
occupying army, acting in his military character, when, by the laws of 
war, or tlie proclamation of the commanding general, it should have been 
exempt from seizure, the owner could have complained to that com- 
mander, who might have ordered restitution, or sent the otfending party 
before a military triljunal, as circumstances might have required, or he 
(•;)uld li:i\(' luad recourse to the government for redress. But there could 
be no doubt of the right of the army to appropriate any property there, 
although belonging to i^rivate individuals, which was necessary for its 
support or convenient for its use. This was a belligerent right, which 
was not extinguished by the occupation of the country, although the 
necessity for its exercise was thereby lessened. However exempt from 
seizure on other grounds private property there may have been, it was 
always subject to l)e appropriated wlien re(|uired ))y the necessities or 
convenience of the army, thougli the owner of property fallen in such case 
may have had a just cl dm against th*» government for indemnity. 

"This doctrine of non-liability to the tribunals of the invaded country 
for acts of warfare is as applicable to members of the Confederate army 
when in Pennsylvania, as to members of the National army when in the 
insurgent States. The officers or soldiers of neither army could be 
called to account civilly or criminally in those tribunals for such acts, 
whether those acts resulted in the destruction of property or the destruc- 
tion of life; nor could they be required by those tribunals to explain or 
justify their conduct upon any averment of the injured party that the 
acts complained of were unauthorized by the necessities of war. It fol- 
lows that, in our judgment, the District Court of New Orleans was with- 
out jurisdiction to render the judgment in question, and the special pleas 
in this case constituted a perfect answer to the declaration. — (See People 
vs. Coleman, 97 U. S., 509; Ford vs. Surget, Id., C05 ; also LeCaux vs. Eden, 
2 Doug., 594 ; Lamar vs. Browne, 92 U. S., 197, and Coolidge vs. Guthrie, 
2 Amcr. Law. Reg., N. S., 22.) 

"We fully agree with the presiding justice of the circuit court in the 
doctrine that the military should always be kept in subjection to the 



119 

laws of the country to \vhicli it l>clon.tis. and tliat he is no friend to the 
liepnblic who advocates tiic contrary. The cstalilisli.d ])rinciple of every 
free people is, that the law shall alone govern; and to it the military 
must always yield. "We do not coutrovert tlie doctrine of Mitchell vs. Har- 
mony ; on the contrary, we approve it. But it has uo application to the 
case at l)ar. The trading for which the seizure was there made had been 
permitted by the Executive Department of our government. The ques- 
tion here is. what is the law which governs an army invading an enemy's 
country? It is not the civil law of tlie invaded country; it is not the 
civil law of the conquering country; it is military hiw — the law of war — 
and its supremacy for the protection of the oflicers and soldiers of the 
army, when in service in the tield in the enemy's country, is Jis essential 
to the efficiency of the army as the supremacy of the civil law at home, 
and in. time of peace, is essential to the preservation of liberty." 



Protection of Sealed Matter in the Mail from In- 
spection BY Officials of the Post-Office. 

How far inatttM' in the mail can bo protected iVoin in- 
spection by officials of the post-office, and at the same 
time the mail prevented from being the vehicle of circu- 
lating publications having a tendency to corrupt the pub- 
lic morals, has been for many years the subject of frequent 
discussion and of much conflict of opinion. It was the 
occasion of an earnest debate in the Senate of tbe United 
States in 1886. President Jackson, in his annual message 
of the previous year, had referred to the attempted circu- 
lation through the mail i^f inflammatory appeals, addressed 
to the passions of the slaves, in prints, and in various pub- 
lications, tending to stimulate them to insurrection, and 
suggested to Congress the propriety of passing a law pro- 
hibiting, under severe penalties, such circulation of •' in- 
cendiary pubhcations" in the Southern States. In the 
Senate, that portion of the message was referred to a select 
committee, of which Mr. Calhoun was chairman ; and he 
made an elaborate report on the subject, in which he con- 
tended that it belonged to the States, and not to Congress, 
to determine what is and what is not calculated to disturb 



120 

their security, and tliat to hold otherwise would-be fatal to 
the States; for if Congress might determine what papers 
were incendiary, and as such pr()liil)it their circulation 
through the mail, it might also determine what were not 
incendiary and enforce their circulation. Whilst, there- 
fore, condemning in the strongest terms the circulation of 
the publications, he insisted that Congress had not the 
power to pass a law prohibiting their transmission through 
the mail, on the ground that it would abridge the liberty 
of the press. " To umkrstand," he said, " more fully the 
extent of the control which the right of prohibiting circula- 
tion through the mail would give to the government over 
the press, it must be borne in mind that the power of Con- 
gress over the post-office and the mail is an exclusive 
power. It must also be remembered that Congress, in the 
exercise of this power, may declare any road or navigable 
winter to be a post-road; and that, by the act of 1825, it is 
provided ' that no stage, or other vehicle which reguharly 
performs trips on a post-road, oi- on a road parallel to it, 
shall carry letters.' The same provision extends to pack- 
ets, l)oats, ov other vessels on navigable waters. Like pro- 
vision may l)e extended to newspapers and pamphlets, 
which, if it be admitted that Congress has the right to dis- 
criminate in reference to their character, what paper shall 
or what shall not be transmitted by the mail, would subject 
the freedom of the press, on all subjects, political, moral, and 
rehgious, completely to its will and pleasure. It would, in 
fact, in some respects, more effectually control the freedom 
of the press than any sedition law, however severe its pen- 
alties." Mr. Calhoun, at the same time, contended that 
when a State had pronounced certain publications to be 
dangerous to its peace and prohibited their circulation, it 
was the duty of Congress to respect its laws and co-oper- 
ate in their enforcement; and whilst, therefore, Congress 
could not prohibit the transmission of the incendiary doc- 
nments through the mails, it could prevent their dehvery 
by the postmasters in the States where their circulation was 



121 

forhiddcii. Tn the discussion upon the bill reported by 
liini, similar views against the power of Congress were ex- 
pressed by other Senators, who did not concur in the opin- 
i,)n that the delivery of pa[)ci-s could he pi'cvcnted when 
their transmission was permitted. 

The ([Ucstion tlius i)rcscnted came ])efore the Suj)i'eme 
Court of the TTnited States at the October tei-m of 1877, 
in Ex-parte Jackson. A section of the Revised Statutes 
provided that " no letter or circuhir concerning lotteries, 
so-called gift concerts, or other simi hu- enterprises oHering 
prizes," should be carried in tlie mail, and declared that 
any person knowingly depositing any tiling in the mail to 
be conveyed in violation of this section should be pun- 
ished by a fine of from one to five hundred dollars, with 
costs of prosecution. Under this section one Jackson was 
indicted in the Circuit Court of tlie United States for 
the Southern District of Xew' Yoi-k, for depositing in the 
mail at ]*s'ew York, to lie conveyed to another person, a 
circular concerning a lottery ottering prizes. Upon being 
arraigned he stood mute, refusing to plead, and thereupon 
a plea of not guilty was entered in his behalf .by order of 
the court. He w^as subsequently tried, convicted, and sen- 
tenced to pay a fine of one hundred dollars, witli the costs 
of the prosecution, and to be committed to the county jail 
until tlie fine and costs were paid. Upon his commitment 
he presented to the Supreme Court a petition, alleging, 
among other things, that he was illegally restrained of his 
liberty, as the court had no jurisdiction to punish for the 
matters charged, because the act of Congress was uncon- 
stitutional and void. He therefore prayed for a Avrit of 
habeas corpus to be directed to the marshal to liring him 
before the court, and a writ of certiorari to lie directed to 
the clerk of the circuit court to send up the record of his 
conviction, that the court might inquire into the cause and 
legality of his imprisonment. Accompanying the petition, 
as exhibits, w-ere copies of the indictment and of the rec- 
ord of conviction. The court, instead of ordering that the 



122 

writs issue at once, entered a rule, the counsel of the peti- 
tioner consentino- thereto, that cause be shown, on a day 
designated, why the writs should not issue as prayed, and 
that a co[)y of tlie rule l)e served on the Attorney-General 
of the United States, the marshal of the Southern District 
of Xew York, and the clerk of the Circuit ('ourt. On the 
return (hiy the validity of the act was argued. The court 
decided the act to be valid and refused the writs, drawing 
a distinction, in the right of inspection by officials of the 
post-office, between sealed matter and unsealed matter, 
and holding that sealed matter in the mail is equally 
protected from unreasonable search as papers in one's 
household. In giving the opinion of the court. Judge 
Field said as follows : 

" The power vested in Congress 'to establish post-roads and post-offices ' 
has been practically construed, since the foundation of the government, 
to authorize not merely the designation of the routes over which the mail 
shall be carried, and the offices where letters and other documents shall 
be received to be distributed or forwarded, but the carriage of the mail, 
and all measures necessary to secure its safe and speedy transit, and the 
prompt delivery of its contents. The validity of legislation prescribing 
what should be carried, and its weight and form, and the charges to which 
it should be subjected, has never been questioned. AVhat should be mail- 
able has varied at different times, changing with the facility of trans- 
portation over the post-roads. At one time only letters, newspapers, 
magazines, pamphlets, and other printed matter, not exceeding eight 
ounces in weight, were carried ; afterwards books were added to the list ; 
and now small packages of merchandise, not exceeding a prescribed 
weight, as well as books and printed matter of all kinds, are transported 
in the mail. The power possessed by Congress embraces the regulation 
of the entire postal system of the country. The right to designate what 
shall be carried necessarily involves the right to determine what shall be 
excluded. The difficulty attending the subject arises, not from the want 
of power in Congress to prescribe regulations as to what shall constitute 
mail matter, but from the necessity of enforcing them consistently with 
rights reserved to the people, of far greater importance than the trans- 
portation of the mail. In their enforcement a distinction is to be made 
between different kinds of mail matter ; between what is intended to be 
kept free from inspection, such as letters and sealed packages subject to 
letter postage ; and what is open to inspection, such as newspapers, maga- 
zines, pamphlets, and other printed matter, purposely left in a condition 
to be examined. Letters and sealed packages of this kind in the mail 



123 

are as fully jjuurded from examination and inspection, except as to thetr 
outward form and weijiht, as if they were retained by the parties for- 
wardinji tliem in their own domiciles. The constitutional guaranty of the 
risrht of tlie people to be secure in their papers against unreasonable 
searches and seizures extends to their papers, thus closed against inspec- 
tion. wliere\(T (hey may be. Whilst in the mail they can only lie opened 
and examined under like warrant, issued ujion similar oath or atlirma- 
tion, particularly describing the thing to l)c seizeil, as is re(|uire(l when 
papers are subjected to search in one"s own household. No law of Con- 
gress can i)lace in the hands of otiicials connected with the jiostal service 
any autlu)rity to invade the secrecy of letters and such sealed packages 
in the mail; and all regulations adopted as to mail matter of this kind 
must be in subordination to th(> great principle embodied in the fourth 
amendment of the Con.stitution. 

"Nor can any regulation l)e enforced against the transportation of 
printed matter in the mail, which is open to examination, so as to inter- 
fere in any manner with the freedom of the press. Liberty ol' circulating 
is as essential to that freedom as liberty of ])ublishing; indeed, without 
the circulation the publication would be of little \alue. If, therefore, 
printed matter be excluded from the nuiils, its transportation in any other 
way cannot be forbidden by Congress.'' 

ReiVi'1-iiiu' to the views expressed l\y Mr. Callioun and 
other Senators in the Senate in 18o(), stated ahove, the 
Judge said as follows : 

" It is evident that they were founded upon the assumption that it was 
comi)etent for Congi'ess to prohibit the transportation of iiew.spapers and 
pamphlets over postal routes in any other way than by mail ; and of course 
it would follow that if, with sirch a prohibition, the transportation in the 
nuiil could also be forbidden, the circulation of the documents would be 
destroyed and a fatal blow given to the freedom of the press. But we do 
not think that Congress possesses the power to prevent the transportation 
in other ways, as merchandi.se, of matter which it excludes from the 
mails. To give etficiency to its regulaticms and prevent rival po.stal sj's- 
tems, it may perhaps prohibit the carriage by others for hire over postal 
routes of articles which legitimately constitute mail matter, in the sense 
in which those terms were used when the Constitution was adopted — con- 
sisting of letters, and of newspapers and pamphlets when not sent as mer- 
chandise — but further than this its power of prohibition cannot extend. 

" Whilst regulations excluding matter from the mail cannot be enforced 
in a way which would require or permit an examination into letters or 
sealed packages .subject to letter postage, without warrant issued- ui^on 
oath or affirmation, in the search for prohibited matter, they may be en- 
forced irpon competent evidence of their violation obtained in other waj'S, 
as from the parties receiving the letters or packages, or from agents de- 



124 

positing them in the post-office, or others cognizant of the facts. And as 
to objectionable print«l matter, which is ojieu to examination, the regu- 
lations may be enforced in a similar way, by the imposition of penalties 
for their violation through the courts; and in some cases, by the direct 
action of the officers of the postal service. In many instances those offi- 
cers can act upon their own inspection, and from the nature of the case 
must act Avithout other proof, as where the postage is not prepaid, or 
where there is an excess of weight over the amount prescribed, or where 
the object is exposed and shows unmistakably that it is prohibited, as in 
the case of an obscene picture or print. In such cases, no difficulty 
arises, and no principle is violated, in excluding the prohibited articles 
or refusing to forward them. The evidence respecting them is seen by 
every one and is in its nature conclusive." 



The Fourteenth Amendment and the Slaughter-house 
Cases. — Equality of Right in the pursuit. of any Law- 
ful Trade or Avocation Maintained. 

The institution of slavery, with the irritations and re- 
proaches to which it gave rise hetween the States, where 
it existed, and the free States, was the cause of the civil 
war. Its extinction was the natural consequence of the 
success of the forces of the Tnion. The Constitutional 
amendment, which destroyed it, declared that "neither 
slavery nor involuntary servitude, except as a punishment 
for crime, whereof tlie party shall have heen duly con- 
victed, shall exist within the United States or any place 
subject to their jurisdiction." It thus not only abolished 
the existing institution, but forever prohibits its future es- 
tabhshment. And by its comprehensive language it em- 
braces not merely slavery of the African race, as it pre- 
viously existed, but involuntary servitude in any form — 
peonage, villanage, serfage, and all other modes by which 
man can be subjected to compulsory lal)or for the pleasure, 
proiit, or caprice of others. It was intended to make every 
one within the jurisdiction of the IJnited States a free 
man, and as such to allovv him to pursue his happiness by 
the ordinary avocations of life upon the same terms and 
conditions as others. 



■\■2r^ 

To give etr'eet to this purpcise of the jiiiiciKliiuMit, (\n\- 
gress, soon after its adoption, passed the eivil rights act. 
The amendment was ratilied on the ISth of heeemher 
18()o, tliar is, the oHii'ial proclamation of its ratification was 
made on that day. In April of tlie followiiigveai- the ci\il 
rights act was passed. Its first section is as follows: ^' />V if 
eioicted, t)'T,, That all persons born in the Tnited States and 
not subject to any foreign powder, excluding Indians not 
taxed, are hereby declared to be citizens of the United 
States, and such citizens, of every race and color, without 
regard to an}' previous condition of slavery or involuntary 
servitude, except as a punishment for crime, whereof the 
party shall have been duly convicted, shall have the same 
right, in every Stiite and Territory in the United States, 
to make and enforce contracts, to sue, be parties, and give 
evidence, to inherit, purchase, lease, sell, hold, and convey 
real and personal property, and to fidl and equal benefit 
of all laws and proceedings for the security of person and 
property, as is enjoyed by white citizens, and shall be sub- 
ject to like punishment, pains, and penalties, and to none 
other, any law, statute, ordinance, regulation, or custom 
to the contrary notwithstanding."" 

The other sections of the act are designed to secure the 
rights thus declared.* 

The bill for this act was earnestly discussed in Congress 
and its validity was violently assailed. On the one hand 
it was contended that the amendment was only designed 
to do way wuth slavery of the colored race, and, except as 
it affected that institution, it left all the powers of the 
State untouched, with a right in its legislation to discrim- 
inate against persons of that race and others. On the other 
hand it was insisted that the amendment was intended to 
secure to all persons equality of civil rights. Senator 
Trumbull drew the bill and introduced it into the Senate, 
and in opening the discussion upon it in that body stated 

* 14 Statutes-at-Large. '11. 



12G 

that the object of the measure was to ^tjive efrect to the 
declaration of the ainendment, ol)sei-ving that there was 
very httle importance in the general declaration of ab- 
stract truths and principles unless they could be can-ied 
into etiect; — unless the persons who were to be alfected 
by them had some means of availing themselves of their 
benetits ; that the first section of the bill proposed declared 
what were the rights of all persons; that the other sections 
contained the necessary macljiuery to give effect to tbeiii; 
and that if Congress liad not authority to give practical 
effect to the great declaration that slavery shall not exist 
in the United States, by a bill of that kind, nothing would 
be accomplished by the adoption of tlie constitutional 
amendment. 

The Senator then referred to the clause of the Consti- 
tution which declares that '' the citizens of each State shall 
be entitled to all privileges and immunities of citizens in 
the several States," and asked, " What rights are secured 
to the citizens of each State under that provision ? " And 
he answered, " Such fundamental rights as belong to every 
free person; " citing from Story the statement that the in- 
tention of this clause was to confer on citizens, if one may 
so say, a general citizenship, and to communicate all the 
privileges and immunities which the citizens of the same 
State would be entitled to under the like circumstances. 
He also quoted with special approval the language of 
Judge Washington, in Corfield vs. Coryell, that l)y the 
expression privileges and immunities of citizens, as here 
used, were ULeaiit those privileges and immunities which 
are in tlieir nature fundamental, and belong of right to 
the citizens of all free governments. He added that the 
people of the insurgent States had not regarded the col- 
ored race as citizens, and on that principle many of their 
laws making discriminations between the whites and the 
colored people were based, and said : " But it is competent 
for Congress to declare, under the Constitution of the 
United States, who are citizens. If there were any ques- 



127 

tiou iil.oiit il, it would l>c settled l.v tlie ]i:issn,uv of a l:nv 
declaring- all [.ersons horn in the Tnited States to l»e citi- 
zens tliei-eol'. That this hill [)ro|)oses to do. Then they 
will he entitled 'to the riii'hts ol' t'itizens. And what ai'e 
they ? The ;4reat rundamental ri,u-hts set forth in this hill: 
the fi^-ht to ae([nire [)i'operty, the riii'ht to u'o and eonie at 
i)leasnre, the I'iulit to t-n!oi\H' riiidits in the eoinis, to make 
contracts, and to inherit and dispost' of jiroperty. These 
are the very rights that are set forth in this hill as a[)per- 
taining to every freeman." 

Otfier Senators ex[»ressed similar views in advocating 
the measure. The l)ill was passed in hoth Ilonses of Con- 
gress In^ a hirge ma.jorit_y, hut it was vetoed hy the I^-esi- 
dent; it was then passed over tlie veto hy tlie required 
two-tliirds vote. But notwithstanchng its [lassage by a 
hirge majority of both Houses, and over the veto of the 
President, grave doubts of its constitutionahty were enter- 
tained by men of distinguished al>iHty, many of wdiom 
were not hostile to its object. In some of the State courts 
also its validity was denied; and in others, able judges 
dissented from judgments recognizing its obligation. 
Complaints also were made that, notwithstanding the 
amendment abolishing slavery and involuntary servitude, 
except for crime, the freedmen in some of tlie insurrec- 
tionary States were subjected to burdens and disabilities 
in the acquisition and enjoyment of property and in the 
pursuit of happiness, which to a great extent destroyed the 
value of their freedorh. Hostile sentiments were also al- 
leged to exist towards citizens of the Xorth seeking busi- 
ness or residence among them, and towards their own cit- 
izens who adhered to the government of the Union during 
the war. Xo doubt there was much exaggeration in the 
complaints of these things, but they w'ere nevertheless be- 
lieved to be W'Cll founded. To remove the cause of them, 
and to obviate at the same time the grounds of objection 
to the validity of the civil riglits act, or to similar legisla- 
tion, and prevent hostile and discriminating legislation 



128 

by any State a^'ainst citizens of tlie United States, and 
thus secure to all persons within the jurisdiction of every 
State the equal protection of its hnvs, tlie fourteenth 
amendment was brought forward and adopted. This pur- 
pose was avowed in all the discussions of the measure in 
both Houses of Congress. A very instructive and able 
article upon this subject, by "William L. Royall, Esq., of 
Richmond, Va., is found in the number of the Southern 
Law Review for October and November of 1878, in which 
he shows by citations from the remarks of every one who 
participated in the debate, that it was the purpose of its 
framers and advocates to obviate objections to legislation 
similar to that contained in the civil rights act. 

At the session of Congress following the adoption of the 
amendment aboHshing slavery and involuntary servitude, 
propositions for further amendments were numerous. All. 
of them were sent to a committee of the two Houses on 
Reconstruction, consisting of fifteen, of whom Mr. Fes- 
senden was chairnum on the part of the Senate, and Mr. 
Thaddeus Stevens on the part of the House. That com- 
mittee reported on the 30th of April, 186ti, as the result 
of their deliberations, in the form of a joint resolution, an 
amendment to the Constitution. As it came from the 
committee the first section of the proposed amendment 
was as follows : 

" No State shall make or enforce auy law which shall abridge the 
privileges or immunities of citizens of the United States ; nor shall any 
State deprive auy ijerson of life, liberty, or property without due process 
of law, nor deny to any person within its jurisdiction the equal pro- 
tection of the laws." 

The second section provided the basis of representation; 
the third declared that no person who had voluntarily 
aided the late insurrection should have tlie right to vote 
for representatives in Congress, or for electors for Presi- 
dent and Vice-President, until July 4, 1870 ; the fourth 
prohibited the payment of the Confederate debt; and the 
fifth provided that Congress should have power to en- 



129 

t 

fovce tlio provisions of llio article ]>_v :i])])ropriato leii'is- 
latioii. 

The resolution was first hroiii:.'!!! forward in the Itonso, 
the Senate awaitini;: its action. The [•riiu'i]>al (k^l)afe was 
on the third section, which was not thon^'lit to hi' sulii- 
eiently jyiniitive. it, liowever, was ado[>ted without ahera- 
tion. Mr. Stevens o[)ene(l the discussion and said : 

"The lirst section prohibits the States Iroiu abridging the privileges 
and immnnities of citizens of the United States, or unhiwfully depriving 
them of life, liberty, or property, or of denying to any person within 
their jurisdiction the 'equal' protection of the laws. I can hardly be- 
lieve tluit any person can be found who will not admit that every one of 
these provisions is just. They are all asserted, in some form or other, in 
our Declaration or organic law. But the Constitution limits only the 
action of Congress, and is not a limitation on the States. This amend- 
ment supplies that defect, and allows Congress to correct the unjust 
legislation of the St{ites,so far that the law wliich oi)erates upon one man 
shall operate equally upon all." 

Mr. Fink, a Democrat, followed ]Mr. Stevens, and made 
the point that the first section was, in suhstance, the civil 
rights hill which Congress had just passed over the Presi- 
dent's veto; and that bv voting to so amend the Constitu- 
tion of the United States as to put the civil rights l)ill into 
it was the same thing as to admit that the civil rights l)ill 
was Unconstitutional. 

To this Mr. Garfield replied : 

" I am glad to see this first section here, which purposes to hold over 
every American citizen, without regard to color, the protecting shield of 
law. The gentleman who has just taken his seat undertakes to show 
that because we propose to vote for this section we therefore acknowledge 
that the civil rights bill was unconstitutional. He was anticipated in 
that objection by the gentleman from Pennsylvania (Mr. Stevens). The 
civil rights bill is now a part of the law of the land. But every gentle- 
man knows it will cease to be a part of the law whenever the sad moment 
arrives when that gentleman's party comes into power. It is precisely 
for that reason that we propose to lift that great and good law above the 
reach of political strife, beyond the reach of plots and machinations of 
any party, and fix it in the serene sky, in the eternal firmament of the 
Constitution, -where no storm of passion can shake it, and no cloud can 
obscure it. For this reason, and not because I believe the civil rights bill 
unconstitutional, I am glad to see that first section here." 
9 



130 

Mr. Thayer, a Ropnl)lican, in tlio course of his remarks 
said : 

"With regard to the first section of the proposed amendment to the 
Constitution, it simply brings into the Constitution what is found in the 
hill of rights of every State of the Union ; as I understand it, it is hut 
incorporating in the Constitution of the United States the principle of 
the civil rights bill which has lately become a law, and that not, as the 
gentleman from Ohio (Mr. Fink) suggested, because, in the estimation of 
this House, that law cannot be sustained as constitutional, but in order, 
as was justly said by the gentleman from Ohio who last addressed the 
House (Mr. Garfield), that that provision, so necessary for the equal ad- 
ministration of the law, so just in its operation, so necessary for the pro- 
tection of the fundamental rights of citizenship, shall be forever incorpo- 
rated in the Constitution of the United States." 

The language of all the other speakers in the House 
was to the sa.me purport. The first section of the pro- 
posed amendment passed tlie House as it came from the 
committee, and it thus went to the Senate. The health of 
Mr. Fessenden, the chairman of the committee of the 
Senate, disabled him from taking charge of the resolution, 
and it was entrusted to the custody of Mr. Howard, Sena- 
tor from Michigan. In his opening speech, explaining the 
various sections and defining as far as he was able the 
privileges and immunities of a citizen of the United States, 
comprising as well those which he had as a citizen of the 
State as those which he had as a citizen of the United 
States, he said : 

"The great object of the first section of this amendment is, therefore, 
to restrain the power of the States and compel them at all times to re- 
spect their fundamental guarantees." 

It is to be observed that the resolution, as reported from 
the committee and discussed in the House and in the Sen- 
ate, did not have the clause defining citizenship of the 
United States. It opened with the provision " Xo State 
shall make or enforce any law which shall abridge the 
privileges and immunities of citizens of the United States," 
and it is plain that no one who either fiivored or opposed 
the amendment undei'stood that in that form it was de- 
signed to protect only the rights of citizens of the United 



131 

States, and not the rights of citizens of the State. The 
provision deiining citizenship of the Tnited States was 
offered hy the Senator from Michigan, after the resohition 
had passed the House and hceii undrr discussion in the 
Senate for several (hiys. [n the House, Mr. IJinghani, (»!' 
Ohio, had contended that the ci\il rights hill was uncou- 
stitutional, ai'guing that the rights of citizens whieh it un- 
dertook to ])rotect were left hy the Constitution to the pro- 
tection of the States, and that Congress had no right to 
legislate on the suhject. Attention was also called to the 
fact that the act nuule negroes citizens of the United States, 
whereas the Supreme Court had decided in the Dred Scott 
case that no person of African descent could become such 
a citizen. The clause as to citizenship was added to the 
proposed amendment in order to obviate these objections. 
Xo one intimated during the wdiole debate that its purpose 
was to qualify in any respect the subsequent general lan- 
guage of the amendment. 

There w^as a perfect unanimity of opinion between Sena- 
tors and Representatives, Democrats and Republicans, that 
the purpose of the first section was to incorporate the civil 
rights bill into the Constitution, or rather to authorize leg- 
islation of a similar character and thus obviate the objec- 
tions that had been made to that bill on account of the 
supposed limitation of the amendment abolishing slavery 
and the Dred Scott decision. The Republicans contended 
for the adoption of the amendment l)ecause such was its 
purpose and would be its effect ; the Democrats opposed 
it for the same reason.. All agreed in declaring its pur- 
pose; and there was no cUfierence in their understanding 
of it after the declaration of citizenship was added to the 
amendment from what it was previously. Xo one sup- 
posed that this addition limited or changed the character 
of rights which were to be protected. 

The amendment, in its present form, passed both Houses 
of Congress by large majorities, and was ratified hy the 
States on the 28th of July, 1868; that is to say, on that 
day the proclamation of its ratification was made. 



132 

The first cases linder this amendment which came he- 
tore the Supreme Court grew out of an act of the Legis- 
lature of the State of Louisiana, entitled "An act to protect 
the healtli of the city of l^ew Orleans, to locate the stock- 
landings and slaughter-liouses, and to incorporate ' The 
Crescent City Live-Stock Landing and Slaughter-House 
Company,' " which was approv^ed on the 8th of March, 
1869, and went into operation the 1st of June following. 
The act created the corporation mentioned in its title, 
which was composed of seventeen persons designated by 
name, and invested them and their successors with the 
powers usually conferred upon corporations, and certain 
special and exclusive privileges. 

It first declared that it sliouhl not be lawful, after the 
1st day of June, 1869, to land, keep, or slaughter any 
animals, or to have, keep, or establish any stock-landing, 
yards, slaughter-houses, or abattoirs within the city of Xew 
Orleans, or the parishes of Orleans, Jeflerson, and St. Ber- 
nard, except as provided in the act, and imposed a penalty 
of $250 for each violation of its provisions. 

The act then authorized the corporation to establish and 
erect, within the parish of St. Bernard and the corporate 
limits of Xew Oi'leans, at a designated place, (which was 
on the river below the occupied portions of the city,) 
wharves, stables, sheds, yards, and buildings necessary to 
land, stable, shelter, protect, and preserve all kinds of 
horses, mules, cattle, and other animals, and provided that 
animals destined for sale or slaughter in the city of New 
Orleans or its environs, should be landed at the wharves and 
yards of this company and be there yarded, sheltered, and 
protected, if necessary; and that the company should be 
entitled to certain prescribed fees for the use of its wharves 
and for each animal landed, and be authorized to detain 
the animals until the fees were paid, and if not paid within 
fifteen days to take proceedings for their sale. Every 
person violating any of these provisions, or landing, yard- 
ing, or keeping animals elsewhere was subjected to a fine 
of $250. - - ■ 



The act tlien required tlio eoriioration to erect a ^I'aiul 
slangliter-lionse ol' .^uHicient (liineiisions to accommodate 
all butchers, in wliieh tive hundred auiiiuds might be 
sUiughtered a day, with a sullieient uundier of sheds and 
stal)h's for the stock I'eceived at the [)ort of New Orhnins, 
and provided that when these buihlings were completed 
and thrown open for use, public notice should be given 
for tiiirty days, and within that time all other stock-land- 
ings and slaughter-houses within the pai'ishes of Orleans, 
Jetlerson,and kSt. J3ernard were to he closed, and it should 
no longer be lawful to slaughter animals in them, the 
meat of which was destined for sale within those parishes. 

The act then [irovided that the company should receive 
for every animal slaughtered in its buildings certain pre- 
scribed fees, besides the head, feet, gore, and entrails of 
all animals, except of swine. 

Other provisions of the act required the inspection of 
the animals before they were slaughtered. The exclusive 
privileges mentioned were granted for the period of twenty- 
five years. The language of the act was that the corpora- 
tion should 'Hiave the soJe <ind exdasive pniilcge o^ con- 
ducting and carrying on the live-stock landing and slaugh- 
ter-house business, within the limits and privilegQs granted 
by the provisions of the act ; " and, after the 1st of Jvme, 
1869, should have " tJie exdusice pi'!nlcf/e of having landed 
at their landing places all animals intended for sale or 
slaughter " in the parishes of Orleans and Jeflerson, and 
" the exdusice pridler/e of having slaughtered" in its slaugh- 
ter-houses all animals the meat of which w^as intended for 
sale in these parishes. 

The character of these special privileges will be better 
understood when the extent of country and of population 
which they aifected are stated. The parish of Orleans con- 
tains an area of country of 150 square miles ; the j)^i'ish 
of Jefferson, 384 square miles; and the parish of St. Ber- 
nard, 620 square miles. The thi'ee parishes togetlier con- 
tain an area of 1,154 square miles, and they had a popu- 
lation of between two and three hundred thousand people. 



134 

Previous to the passage of the act there were more than 
a thousand persons in the territory mentioned who sup- 
ported themselves and their families by the business of 
procuring, preparing, and seUing animal food, but by the 
act in question they were all deprived of the business in 
which they were thus engaged, or subjected to onerous 
conditions in its prosecution. 

Three cases were brought involving the validity of tliis 
legislation. The first was brought by an association of 
butchers to pi-event the assertion and enforcement of the 
privileges. One was brought by tbe attorney-general of 
the State to protect the corporation in the enjoyment of 
those privileges, and to prevent an association of stock- 
dealers and l)utchers from acquiring a tract of land in the 
same district with the corporation, upon which to erect 
suitable buildings for receiving, kee])ing, and slaughtering 
cattle and preparing animal food for market. The third 
case was brought by the corporation itself to I'estrain the 
defendants from carrying on a l)usiuess similar to its own, 
in violation of its alleged exclusive privileges. 

The substance of the averments of the parties complain- 
ing of this legislation was, that prior to its adoption they 
were engaged in the lawful and necessary business of pro- 
curlno- aiid bringing to tbe parishes mentioned animals 
suitable for human food, and in preparing such food for 
market; that in the i»rosecuti(m of their business they had 
provided in those parishes suitable establishments for land- 
ing, sheltering, keeping, and slaughtering cattle, and the 
sale of meat; that with their association about four hun- 
dred persons were connected, and that in the parishes 
named about a thousand persons were engaged in procur- 
ing, preparing, and selling animal food. And they com- 
plained that the business of landing, yarding, and keep- 
ing, within the parishes named, cattle intended for sale or 
slaughter, which was lawful for them to pursue before the 
1st day of June, 1869, was made by that act unlawful for 
any one except the corporation named; and that the busi- 



ncss oC slaiiu'litoriiiii- cnttK' and pi'cpai'iiiu' animal W^nd for 
inai'kot, which it was lawful for thnu to piirsuc in thoso 
parishes hcforc that dav, was inailc \)y tliat act unlawful 
tor lluan to [)ursuc afterwards, except in llie huildinu-s i.f 
the citnipanv. and U[»on payment of certain [H'escrihed 
fees, and a surrender of a valuahle portion of each animal 
slaughtercch And tliey contended that the hiwful business 
of huidin^',yardinii-, slielterin2:,and keepini;- cattle intended 
for sale or slau^'hter, wliich they, in connnon witli every 
indiviihial in the community of the three parislies, had a 
right to follow, could not he thus taken from them and 
given over for a pei'iod of twenty-five years tor the sole 
and exclusive enjoyment of a ci^rporation of seventeen 
persons, or of anybody else. And they also contended 
that the lawful and necessary business of slaughtering cat- 
tle and preparing animal food for market, which they and 
all other individuals had a right to follow, could not be 
thus restricted, within this terntory of 1,154 square miles, 
to the btiildings of this corporation, or be subjected to 
tribute for the emolument of that body. 

The Supreme Court of the State of Louisiana held the 
act constitutional and gave judgment in all the cases for 
the protection of the exclusive privileges of the corpora- 
tion. The cases were then brought to the Supreme Court 
of the United States and were there twice argued with 
great ability; Judge Campbell, formerly a member of the 
court, and Mr. Fellowes appearing against the act; and Sen- 
ator Carpenter and Mr. Durant for the corporation. The 
exclusive privileges were assailed as being in conflict with 
the 13th amendment, and also with the inhibition of the 
14th amendment, declaring that "ISo State shall make or 
enforce any law which shall abridge the privileges or im- 
munities of citizens of the United States." 

The Supreme Court, by a vote of five of its members 
against four, affirmed the judgment of the Louisiana court, 
holding that the legislation of Louisiana gave no special 
privileges which the State could not grant, and that the 



136 

foui-tcGiith amendment only iiihi])ited an invasion by 
the States of the rights of.citizens of the United States as 
distingnislied from those of citizens of the State. Judges 
Chiibrd, Davis, Strong, Miller, and Hunt composed the 
majority. Chief Justice Chase and Judges Swayne, Field, 
and Bradley dissented from this view. Judge Miller wrote 
the opinion of the majorit}'. Judges Field, Bradley, and 
Swayne each wrote a dissenting opinion. The Chief Jus- 
tice concurred with Judge Field, as did also Judges Swayne 
and Bradley, although they each wrote a separate opinion. 

Both the majority and minority not only considered the 
claim made that the legislation of Louisiana was to he re- 
garded as the exercise of the police power of the State; but 
they gave an extended examination to the inhibition men- 
tioned contained in the fourteenth amendment. 

As to the police power, the majority were of opinion that 
the legislation of Jjouisiana was passed in its legitimate ex- 
ercise, and made reference to the necessity of having the 
landing of live-stock in large droves from steamboats on 
the baidc of the river and from railroad trains limited to 
particular places, so as to secure the safety and comfort 
of the people of the city; and observed that it could not 
be " injurious to the general community that while the duty 
of making ample preparation for this is imposed upon a few 
men, or a corporation, they should, to enable them to do 
it successfully, have the exclusive right of providing such 
landing places, and receiving a fair compensation for the 
service." 

And as to the slaughter-house privilege, they said, speak- 
ing through Judge Miller: 

" It is not, and cannot be successfully controverted, that it is both the 
right and the duty of the legislative body — the supreme power of the 
State or municipality — to prescribe and determine the localities where 
the business of slaughtering for a great city may be conducted. To do 
this effectively it is indispensable that all persons who slaughter animals 
for food shall do it in those places and no where else. The statute under 
consideration defines these localities and forbids slaughtering in any 
other. It does not, as has been asserted, prevent the butcher from doing 



137 

liis own slaiiglitcring. On tlir rontrary, tlir Sl;uif;litcr-Housc Company 
is required, under a heavy penalty, to permit any person wlio wishes to 
do so, to ahiu;!,hter in their houses, and they are bound to make ample 
l>rovisi<iii lor the convenience of all the slaughtering for the entire city. 
Tlie ))utch(r, then, is still permitted to slaughter, to prepare, and to sell 
his own meats ; but he is required to slaughter at a specilied place and to 
l)ay a reasonable compensation for tlie use of tlie accommodations fur- 
nished him at that place. 

'•The wisdom of the monopolj' granted by tiie legislature may be open 
to questi<m, but it is difficult to see a justification for the assertion that 
the butchers are deprived of the right to labor in their o(<u])ation, or the 
people of their daily service in preparing food, or how this statute, with 
the duties and guards imposL>d upon the conijiany, can be said to destroy 
the bu.siness of the butcher, or seriously interfere with its pursuit. The 
l)ower here exercised by the Legislature of Louisiana is. in its essential 
nature, one which has been, up to the present period in the constitutional 
history of this country, always conceded to belong to the States, however 
it may noir l)e ([uestioned in some of its details," 

lie tlu'ii cites from Kent and Sliaw as to tlie extent of 
that power, and continues : 

" This power is, and must be, from its \evy nature, incapable of any 
A-ery exact definition or limitation. Upon it depends the security of so- 
cial order, the life and health of the citizen, the comfort of an existence 
in a thickly populated community, the enjoyment of private and social 
life, and the beneficial use of property. ' It extends," says another eminent 
judge, 'to the protection of the lives, limbs, health, comfort, and quiet of 
all persons, and the protection of all property within the State ; . . . and 
persons and property are subjected to all kinds of restraints and burdens 
in order to secure the general comfort, health, and prosperity' of the State. 
Of the perfect right of the legislature to do this no question ever was, or, 
upon acknowledged general principles, ever can be made, so far as natural 
persons are concerned.' '' 

To tliis proposition the minority of tlie court rephed, 
speaking through Judge Field : 

" That power [the police power of the State] undoubtedly extends to 
all regulations aflfecting the health, good order, morals, peace, and safety 
of society, and is exercised on a great variety of subjects, and in almost 
numberless ways. All sorts of restrictions and burdens are imposed 
under it, and when these are not in conflict with any constitutional pro- 
hibitions or fundamental principles, they cannot be successfully^ assailed 
in a judicial tribunal. With this power of the State and its legitimate 
exercise I shall not ditfcr from the majority of the court. But under the 
pretence of prescribing a police regulation the State cannot be permitted 
to encroach upon any of the just rights of the citizen, which the Consti- 
tution intended to secure against abridgment. 



138 

" In the law in question there are only two provisions which can prop- 
erly he called police regulations— the one which requires the landing and 
slaughtering of animals helow the city of New Orleans, and the other 
which requires the inspection of the animals before they are slaughtered. 
When these requirements are complied with the sanitary purposes of the 
act are accomplished. In all other particulars the act is a mere grant to 
a corporation created by it of special and exclusive privileges by which 
the health of the city is iu no way promoted. It is plain that if the 
corporation can, without endangering the health of the public, carry on 
the business of landing, keeping, and slaughtering cattle within a district 
below the city embracing an area of over a thousand square miles, it 
would not endanger the public health if other persons were also per- 
mitted to carry on the same business within the same district under 
similar conditions as to the inspection of the animals. The health of the 
city might require the removal from its limits and suburbs of all build- 
ings for keeping and slaughtering cattle, but no sijch object could po.ssi- 
bly justify legislation removing such buildings from a large part of the 
State for the benefit of a single corporation. The pretence of sanitary 
regulations for the grant of the exclusive privileges is a shallow one, 
which merits only this passing notice. 

"The act of Louisiana presents the naked case, unaccompanied by any 
public considerations, where a right to pursue a lawful and necessary 
calling, pieviously enjoyed by every citizen, and in connection with which 
a thousand persons were daily employed, is taken away and vested ex- 
clusively for twenty-five years, for an extensive district and a large pop- 
ulation, in a single corxjoration, or its exercise is for that period restricted 
to the establishments of the corporation, and there allowed only upon 
onerous conditions. 

"If e.Kclusive privileges of this character can be granted to a corpora- 
tion of seventeen persons, they may, in the discretion of the legislature, 
be equally granted to a single individual. If they may be granted for 
twenty-five years they may be equally granted lor a century, and in per- 
petuity. If they may be granted for the landing and keeping of animals 
intended for sale or slaughter they may be equally granted for the landing 
and storing of grain and other products of the earth, or for any article of 
commei'ce. If they may be granted for structures in which animal food 
is prepared for market they may be equally granted for structures in 
which farinaceous or vegetable food is prepared. They may be granted 
for any of the pursuits of human industry, even in its most simple and 
common forms. Indeed, upon the theory on which the exclusive privi- 
leges granted by the act in question are sustained, there is no monopoly, 
in the most odious form, which may not be upheld." 

The great interest, however, manifested in the opinions 
of the court, both in that of the majority and in those of 
the minority, ai'ose from the discussion the}' contained as 



180 

to tlic iniiiort iiiid iiieuuing ol' the inhibition of the foui" 
tceiith aiiKMuhni'ut. 

'VUv majority hohl that the State was antliori^.ed to eon- 
ler the speeial [»rivik'u-es unless i-esti'aine;! hy that auiend- 
nient. Its tirst seetion, the only one whieh had any bear- 
inu' ni>on the question presented, is as lollows : "All per- 
sons Itoi'u or naturahzed in the Tnited Spates, and 8n1)ject 
to the juris(hetion thereof, are eiti/AMisof the I'nited States 
and of the State wherein tfiey resi(h', Xo State shall 
make or enforee any law whieh shall ahrid_<;'e the [trivi- 
leges or immunities of citizens of tlu' United States, nor 
sliall any State deprive any pei'son of life, liberty, or [»rop- 
erty without due proeess of law, nor deny to any person 
within its jurisdiction the equal protection of tlie laws." 

The majority of the court in their opinion first n'ive a 
history of the three amendments adopted since the war, 
the thirteenth, fourteenth and fifteenth, and state that their 
pervading purpose was the freedom of the slave race, the 
security and firm estahlishment of their freedom, and 
the protection of the newly-made freeman and citizen 
from the oppressions of those who had tH)rvnerly exercised 
unlimited dominion over them, and that in any fair and 
just construction of any section or phrase of the amend- 
ments it is necessary to keep this pervading purpose in 
view. They then take up the fourteenth amendment and 
observe that it opens with a definition of citizenship, not 
only of the United States, hut of tlie States, and that it 
recognizes and estahlishes a distinction Ijetween the two. 
Their language is as lollows: 

" Not only nmy a mau be a citizen of the United States without being 
a citizen of a State, but an important element is necessary to convert the 
former into the latter. He must reside within the State to make him a 
citizen of it, but it is only necessary that he should be born ur natural- 
ized in the United States to be a citizen of the Union. 

" It is quite clear, then, that there is a citizenship of the United States 
and a citizenship of a State, which are distinct from each other, and which 
depend upon different characteristics or circumstances in the individual. 

"We think this distinction and its explicit recognition in fiiis amend- 
ment of great weight in this argument, because the next paragraph of 



140 

this same section, which is the one mainly relied on by the plaintiffs in 
error, speaks only of privileges and immunities of citizens of the United 
States, and does not speak of those of citizens of the several States. The 
argument, however, in favor of the plaintiffs rests wholly on the assump- 
tion that the citizenship is the same, and the privileges and immunities 
guaranteed by the clause are the same, 

"The language is, 'No State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens of tit e United States.'' 
It is a little remarkable, if this clause was intended as a protection to 
the citizen of a State against "the legislative power of his own State, that 
the word citizen of the State should be left out when it is so carefully 
used, and used in (;ontra«listinction to citizens of the United States, in the 
Aery sentence which precedes it. It is too clear for argument that the 
change in phraseology was adopted understandingly and with a purpose. 

" Of the privileges and immunities of the citizen of the United Stales, 
and of the privileges and immunities of the citizen of the State, and 
what they respectively are we will presently consider; but we wish to 
state here that it is only the former which are placed by this clau.se 
under the protection of the federal Constitution, and that the latter, 
whatever they may be, are not intended to have any additional protec- 
tion by this paragraph of the amendment. 

" If, then, there is a difference between the privileges and immunities 
belonging to a citizen of the United States as such, the latter must rest 
for their security and protection where they have heretofore rested; for 
they are not embraced by this paragraph of the amendment." 

The doctrine advanced in this passage is the special 
feature o!" the opinion and has been the occasion of dis- 
cussion and disagreement among judges and members of 
the profession throughout the countr3^ 

The majority then consider the meaning attached to the 
terras "privileges and immunities " contained in the amend- 
ment and adopt substantially as correct the view expressed 
by Judge Washington in Cortield vs. Coryell, that they 
eml)race those rights of citizens which are fundamental in 
their nature, such as belong to citizens of all free govern- 
ments; and hold that their protection rests with the States 
and not with the United States. Their language is as 
follows : 

" It would be the vainest show of learning to attempt to prove by cita- 
tions of authority, that up to the adoption of the recent amendments no 
claim or pretence was set up that those rights depended on the federal gov- 
ernment for their existence or protection, beyond the very few express 



141 

limitationa wliich the federal ("onstitntion imposed nimn the States — 
sueh, for instanee, as the prohibition against ex pont farto laws, bills of at- 
tainder, and laws impairing the obligation of eontracts. Bnt with th»5 
exception of th(>se and a few other restrietiona, the entire domain of the 
])rivileges and immunities of citizens of the States, as above delined, lay 
■within the constitutional and legislative jiower of the States, and with- 
out that of the federal government. Was it the purpose of the four- 
teenth aineiwlment, by the simple declaration that no State should make 
or enforce any law which shall abridge the privileges and imuuniitics of 
citizens of the United States, to transfer the security and protection of all 
the civil rights which we have mentioned, from the States to the federal 
government? And where it is declared that Congress shall have the 
power to enforce that article, was it intended to bring within the power 
of Congress the entire domain of civil rights heretofore belonging exclu- 
sively to the States ? 

"All this and more must follow, if the proposition of the plaintiffs in 
error be sound, for not only are these rights subject to the control of Con- 
gress, whenever in its discretion any of them are supposed to b§ abridged 
by State legislation, but that body may also pass laws in advance, limit- 
ing and restricting the exercise of legislative power by the States, in their 
most ordinary and most useful functions, as in its judgment it may think 
proper on all such subjects. And still further, such a construction fol- 
lowed by the reversal of the judgments of the Supreme Court of Louisiana 
in these cases, would constitute this court a perpetual censor npon all 
legislation of the States, on the civil rights of their own citizens, with 
authority to nullify such as it did not approve as consistent with those 
rights as they existed at the time of the adoption of this amendment." 

The passage here given is generally cited a.-^ -showing 
the evil consequences of any other construction than the 
one adopted. The majority then refer to such [)rivileges 
and immunities of citizens of the United States as they 
suppose are intended, when the States are iuhihited from 
making or enforcing any law abridging them. These are 
the right of the citizen to come to the seat of government, 
to assert any claim he may have upon that government, 
to transact any business he may have with it, to seek its 
protection, to share its offices, to eno-ai-'e in administerino: 
its functions, to have free access to its seaports, to demand 
the care and protection of that goverinnent over liis life, 
liberty, and property on the high seas, or within the juris- 
diction of a foreign government; the right to peaceably 
assemble and petition for redress of grievances; the right 



142 

to use the navio-al.le waters of the United States, and oilier 
similar rights. 

To these positions of the majoir*y of the court several 
objections naturally arise. 

In the first place, if the inhibition upon the States does 
not refer to the fundamental rights of citizens, such as be- 
long to the citizens of all free governments, such as are 
expressed in the Declaration of Independence as the in- 
alienable rights of men, it is dithcult to see what was ac- 
complished by its insertion in the amendment. The priv- 
ileges and immunities which citizens previously enjoyed 
under the Constitution and laws of the United States, no 
State could lawfully interfere with. Any attempted in- 
terference with them could have l)eeu successfully resisted 
through the courts. The parties who drafted and advo- 
cated the fourteenth amendment thought that they would 
obtain thereby additional security for the rights of a citi- 
zen of the United States, not that they were merely con- 
tending for words which could have no eihcacy beyond 
provisions already in force. 

In the second place, the construction .asserted entirely 
io-nores the avowed purpose of the framers of the amend- 
ment, as stated in the discussion of the measure in both 
Houses of Congress. There w^as an entire concurrence of 
views on the part of all persons — Democrats and Repub- 
licans, Senators and Representatives — that the object of 
the amendment was to obviate the objections which had 
been urged to the validity of the civil rights act, or rather 
to legislation of a similar character. That act had stated 
in express terms that citizens of the United States had the 
right -Ho make and enforce contracts, to sue, be parties 
and give evidence, to inherit, purchase, lease, sell, hold, 
and convey real and personal property, and to full and 
equal benefit of all the laws and proceedings for the secui'- 
ity of person and property." These were rights which, 
according to the interpretation of the majority, are now 
dependent for their protection upon the States alone. 



143 

Tliongli the (k'l)iites in Conii'ross cannot be w^ed to qualify 
tlie meaning of lano;naii"o, which i.s not snsceptil)lo of niis- 
constrnction, they can be resorted to in oi'diM- to sliow the 
general i)ni"[)ose of the framers of legishition, an<l it is cer- 
tainly a matter of no sHght significance that the [turpo.-e 
of the amendment, as tlius shown, is consistent with tiie 
ol)vious meaning of its language. "All persons Ix^rn oi- 
naturahzed in the United States, and subject to the juris- 
diction thereof, are citizensof the United States and of the 
State wherein they reside." The citizenship of the United 
States is the general and })rimary citizen.ship which accom- 
panies the individual everywhere. The State citizenship 
is local and movable at the option of the party by a mere 
change of his residence. The command upon the States 
is not to abridge the privileges and immunities of the cit- 
izen of the United States, and thus all the privileges and 
immunities of the citizen, be he of tlie United States or 
be lie of the State, are secured. 

In the third place, the alleged evil consequences of the 
opposite construction are purely imaginary. The inhibi- 
tion of the amendment is upon the States, and if only ap- 
propriate legislation be adopted for its enforcement, no 
such interference with theirlegislation.no such censorship 
over it as indicated in the opinion, can exist. Legislation 
to annul the act of a State can only be approjiriate so far 
as it authorizes application to the courts to meet the exi- 
gency, and by their action the act which is forl)idden will 
be declared null or its enforcement restrained. 

Every inhil)iti()n in the amendment every patriot ought 
to desire to see enforced. Can any one object to the clause 
forbidding a State to abridge the privileges and immimi- 
ties of citizens of the United States ; that is, to take away 
or impaii- any of their fundamental rights ? Can any one 
find fault with the clause which declares that no State shall 
deprive any person of life, liljerty, or property without due 
process of law "r Can any one object to the [)rovision 
which declares that no State shall deny to any person 



144 

within its jurisdiction the. equal protection of its laws ? 
Surely not. The amendment does not limit the subjects 
upon which the States can legislate ; it only inhibits dis- 
criminating and partial enactments favoring some to the 
impairment of the rights of others; it simply requires that 
every one shall be allowed to pursue his happiness unre- 
strained except by just, equal, and impartial laws. 

The amendment has been the subject of complaint from 
the manner in which legislation has attempted to enforce 
its prohibitions, not from the prohibitions themselves. 
That manner has in most cases been clearly wrong. Tlie 
only appropriate manner is that which has been applied 
with reference to other prohibitions previously existing in 
the Constitution, such as the prohi])ition against a State 
passing a law impairing the obligation of contracts, or a 
bill of attainder, or an e.r post ftcto law. No nuichinery is 
necessary to annul any legislation in disregard of these 
prohibitions, except such as may facihtate proceedings for 
that purpose in the courts; and no other legislation can be 
appropriate as against the action of a State. 

The answers of the dissenting judges to the opinion of 
the majority were full, and are generally regarded l)y the 
profession as satisfactory. An extended citation is made 
from the one delivered by Judge Field. He considered 
the law of Louisiana in the Hght of the thirteenth and 
fourteenth amendments, although he only rested his judg- 
ment on the fourteenth. 

" That, amendment [the thirteenth] prohibits slavery and involuntary 
servitude, except as a punishment for crime, but I have not supposed it 
was susceptible of a construction which would cover the enactment in 
question. I have been so accustomed to regard it as intended to meet 
that form of slavery which had previously prevailed in this country, and 
to which the recent civil war owed its existence, that I was not prepared, 
nor am I yet, to give it the extent and force ascribed by counsel. Still it 
is evident that the language of the amendment is not used in a restrictive 
sense. It is not confined to African slavery alone. It is general and uni- 
versal in its application. Slavery of white men as well as of black men 
is prohibited, and not merely slavery in the strict sense of the term, but 
involuntary servitude in every form. 



14') 

•'The words 'involuntary servitude' have not been the subject of any 
judicial or legislative exposition, that I am aware of, in this country, ex- 
cept that which is found in the civil rights act, which will be hereaflcr 
noticed. It is, however, clear that they include suniething- more than 
slavery in the strict sense of the term ; they include also serfage, vas- 
salage, villanage, peonage, and all other forms of compulsory service for 
the mere benelit or pleasure of others. Xor is this the full import of the 
terms. The abolition of slavery and inv((lunt;ny servitude was intended 
to make every one born in this cimntry a freeman, and as sueli, to give 
to him the right to pursue the ordinary avocations of life without other 
restraint than such as affects all others, and to enjoy eciually Avith them 
the fruits of his labor. A prohibition to him to XHirsue certain callings, 
open to others of the same age, condition, and sex, or to reside in phmes 
where others are permitted to live, would so far deprive him of the rights 
of a freeman, and would place him, as respects (Others, in a condition of 
servitude. A person allowed to jjursue only one trade or calling, and 
only in one locality of the country, would not be, in the strict sense of 
the term, in a condition of slavery, but probably none would deny that 
he would be in a condition of servitude. Pie certainly would not possess 
the liberties nor enjoy the privileges of a freeman. The compulsion 
which would force him to labor even for his own benetit only in one 
direction, or in one place, would be almost as oppressive, and nearly as 
great an invasion of his liberty as the compulsion which would force him 
to labor for the benefit or pleasure of another, and would equally con- 
stitute an element of servitude. The counsel of the idaintiffs in error, 
therefore, contend that 'wherever a law of a State or a law of the United 
States makes a discrimination between classes of persons, which deprives 
tlie one class of their freedom or their property, or which makes a caste 
of them, to subserve the power, jiride, avarice, vanity, or vengeance of 
others,' there involuntary servitude exists within the meaning of the 
thirteenth amendment. 

'' It is not necessary, in my judgment, tor the dispositi<ni of the present 
case in favor of the plaintiffs in error, to acce])t as entirely correct this 
conclusion of counsel. It, however, finds support in the act of Congress 
known as the civil rights act, which was framed and adopted upon a con- 
struction of the thirteenth amendment, giving to its language a similar 
breadth. That amendment was ratified on the eighteenth of December, 
1865,* and in April of the following year the civil rights act was passed.f 
Its first section declares that all persons born in the United States, and 
not subject to any foreign power, excluding Indians not taxed, are 'citi- 
zens of the United States,' and that "such citizens, of every race and color, 
without regard to any previous condition of slavery, or involuntary servi- 
tude, except as a punishment for crime, whereof the party shall have 
been duly convicted, shall have the same right in every State and terri- 

* 13 Stat, at Large, 774. f 14 lb.. 27. 

10 



146 

tory in the United States, to make and enforce contracts, to sue, be par- 
ties, and give evidence, to inherit, purchase, lease, sell, hold, and convey 
real and personal property, and to full and equal benefit of all laws and 
proceedings for the .security of person and property, as enjoyed by white 
citizens.' 

" This legislation was supported upon the theorj^ that citizens of the 
United States as such were entitled to the rights and privileges enumer- 
ated, and that to deny to any such citizen equality in these rights and 
privileges with others, was, to the extent of the denial; subjecting him to 
an involuutary servitude. Senator Trumbull, who drew the act and who 
was its earnest advocate in the Senate, stated, on opening the discussion 
upon it in that body, that the measure was intended to give effect to the 
declaration of the amendment, and to secure to all persons in the United 
States practical freedom. After referring to several statutes passed in 
some of the Southern States, discriminating between the freedmen and 
white citizens, and after citing the definition of civil liberty given by 
Blackstone, the Senator said: 'I take it that any statute which is not 
equal to all, and which deprives any citizen of civil rights, which are 
secured toother citizens, is an unjust encroachment upon his liberty; 
and it is in fact a badge of servitude which by the Constitution is pro- 
hibited.' * 

" By the act of Louisiana, within the three parishes named, a territory 
exceeding one thousand one hundred square miles, and embracing over 
two hundred thousand people, every man who pursues the business of 
preparing animal food for market must take his animals to the build- 
ings of the favored company, and must perform his work in themj and 
for the use of the buildings must pay a prescribed tribute to the company, 
and leave with it a valuable portion of each animal slaughtered. Every 
man in these parishes who has a horse or other animal for sale, must carry 
him to the yards and stables of this company, and for their use pay a 
like tribute. He is not allowed to do his work in his own buildings, or 
to take his animals to his own stables or keep them in his own yards, 
even though they should be erected in the same district as the buildings, 
stables, and yards of the company, and that district embraces over eleven 
hundred square miles. The prohibition imposed by this act upon butch- 
ers and dealers in cattle in these parivshes, and the special privileges con- 
ferred upon the favored corporation, are similar in principle and as odious 
in character as the restrictions imposed in the last century upon the peas- 
antry in some parts of France, where, as says a French writer, the peas- 
ant was prohibited ' to hunt on his own lands, to fish in his own waters, 
to grind at his own mill, to cook at his own oven, to dry his clothes on 
his own machines, to whet his instruments at his own grindstone, to 
make his own wine, his oil, and his cider at his own press, .... or 
to sell his commodities at the public market.' The exclusive right to all 

* Cong. Globe, 1st Sess., 39th Cong.. Part I., p. 474. 



147 

these privileges was vested in the lords of the vicinage. ' The history of 
the most execrable tyranny of ancient times,' says the same writer. ' offers 
nothing lilce this. Tliis category of oppressions cannot be applied to a 
free man, or to the peasant, except in violation of his rights.' 

■■ But if the exclusive privileges conferred upon the Louisiana corpor- 
ation can he sustained, it is not perceived wliy exclusive privileges for 
the construction and keeping of ovens, niacliiues, grindstones, wine- 
presses, and for all the numerous trades and pursuits for the prosecution 
of which buildings are required, may not be equally bestowtxl on other 
corporations or private individuals, and for periods of indetinite duration. 

•'It is not necessary, however, as I have said, to rest my objections to 
the act in question upon the terms and meaning of the thirteenth amend- 
ment. The provisions of the fourteenth amendment, which is properly 
a supplement to the thirteenth, cover, in my judgmeiit, the case before 
us, and inhibit auy legislation which confers special and exclusive priv- 
ileges like these under consideration. The amendment was adopted to 
obviate objections which had been raised and pressed with great force to 
the validity of the civil rights act, and to place the common rights of 
American citizens under the protection of the national government. It 
tirst declares that ' all persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of the United States 
and of the State wherein they reside.' It then declares that ' no State 
shall make or enforce any law which shall abridge the privileges or im- 
munities of citizens of the United States, nor shall auy State depri\e 
auy person of life, liberty, or property without due i)rocess of law, nor 
deny to any person within its jurisdiction the equal protection of the 
laws.' 

" The first clause of this amendment determines who are citizens of the 
United States, and how their citizenship is created. Before its enactment 
there was much diversit}' of opinion among jurists and statesmen whether 
there was any such citizen.ship independent of that of the State, and, if 
any existed, as to the manner in which it originated. With a great num- 
ber the opinion prevailed that there was no such citizenship independent 
of the citizenship of the State. Such was the opinion of Mr. Calhoun and 
the class represented bj' him. In his celebrated speech in the Senate upon 
the force bill, in 1833, referring to the reliance expressed by a Senator 
upon the fact that we are citizens of the United States, he said : ' If by 
citizen of the United States he means a citizen at large, one whose citi- 
zenship extends to the entire geographical limits of the country without 
having a local citizenship in some State or territory, a sort of citizen of 
the world, all I have to say is that such a citizen would be a perfect non- 
descript ; that not a single individual of this description can be found in 
the entire mass of our population. Notwithstanding all the pomp and 
display of eloquence on the occasion, every citizen is a citizen of some 
State or territory, and as such, under an express provision of the- Consti- 
tution, is entitled to all the privileges and immunities of citizens of the 



148 

several States; and it is in this aneT no other sense that we are citizens of 
the United States.'-' 

"In the Dred Scott case this subject of citizenship of the United States 
was fully and elaborately discussed. The exposition in the opinion of 
Mr. Justice Curtis has been generally accepted by the profession of the 
country as the one containing the soundest views of constitutional law. 
And he held that, under the Constitution, citizenship of the United States 
in reference to natives was dependent upon citizenship in the several 
States, under their constitutions and laws. 

" The Chief Justice in that case, and the majority of the court with 
him, held that the words 'people of the United States ' and 'citizens' 
were synonymous terms ; that the people of the respective States were 
the parties to the Constitution ; that these people consisted of the free 
inhabitants of those States; that they had provided in their Consti- 
tution for the adoption of an uuifin-m rule of naturalization ; that they 
and their descendants and persons naturalized were the only persons who 
could be citizens of the United States, and that it was not in the power 
of any State to invest any other person with citizenship so that h'e could 
enjoy the privileges of a citizen uuder the Constitution, and that, there- 
fore, the descendants of persons brought to this country and sold as slaves 
were not, and could not be, citizens within the meaning of the Consti- 
tution. 

" The first clause of the fourteenth amendment changes this whole 
subject, and removes it from the region of discussion and doubt. It rec- 
ognizes in express terms, if it does not create, citizens of the United 
States, and it makes their citizenship dependent upon the place of their 
birth, or the tact of their adoption, and not upon the constitution or 
laws of any State or the condition of their ancestry. A citizen of a State 
is now only a citizen of the United States residing in that State. The 
fundamental rights, privileges, and immunities which belong to him as 
a free man and a free citizen, now belong to liim as a citizen of the United 
States, and are not dependent upon his citizenship of any State. The 
exercise of these rights and privileges, and the degree of enjoyment re- 
ceived from such exercise, are always more or less aifected by the condi- 
tion and the local institutions of the State, or city, or town where he re- 
sides. They are thus affected in a State by the wisdom of its laws, the 
ability of its officers, the efficiency of its magistrates, the education and 
morals of its people, and by many other considerations. This is a result 
which follows from the constitution of society, and can never be avoided, 
but in no other way can they be affected by the action of the State, or 
by the residence of the citizen therein. They do not derive their exist- 
ence from its legislation, and cannot be destroyed by its power. 

" The amendment does not attempt to confer any new privileges or 
immunities upon citizens, or to enumerate or define those already exist- 

* Calhoun's Works, vol. 2, p. 242. 



149 

iiig-. It assumes that there are such privileges nnd iinninnities which he- 
h)ng of right to citizens as such, and ordains that they shall not he al)ridged 
l)y state legislation. If this inhihition has no reference to privileges and 
inimunities of this character, hut only refers, as held hy the majority of 
tlie court in their opinion, to such privilege.^ and immunities as were he- 
fore lis lulopl ion specially dcsiguatcd in the Constitution or necessarily 
iuii)lie(l as hclonging to citi/eus of the Inited States, it was a vain and 
idle enactment, which accoaiplislu-d notliing, and most unnecessarily ex- 
cited Congress and the i.e.. pl<> on its passage. Willi pri\ ih'ges and im- 
munities thus designated or implied, no State couhl ever have interfered 
l)y its laws, and no new con.stitutional provision was required to inhil)it 
such interference. The supremacy of the Constitution and the laws of 
the United States always controlled any State legislation of that char- 
acter. But if the amendment refers to the natural and inalienahle rights 
which helong to all citizens, the inhihiti(»n has a profound signiticauce 
and consequence. 

"What, then, are the privileges and immunities whicli are secured 
against abridgment hy State legislation ? 

" In the first section of the civil rights act Congress has given its inter- 
pretation to these terms, or, at least, has stated some of the rights which, 
in its judgment, these terms include ; it has there declared that they in- 
clude the right ' to make and enforce contracts, to sue, he parties and 
give evidence, to inherit, purchase, lease, sell, hold, and convey real and 
personal property, and to full and equal benefit of all laws and proceed- 
ings for the security of person and property.' That act, it is true, was 
passed before the fourteenth amendment, but the amendment was adopted, 
as I have already said, to obviate objections to the act, or, speaking more 
accurately. I should say, to obviate objections to legislation of a similar 
character, extending the protectmn of the national government over the 
common rights of all citizens of the United States. Accordingly, after 
its ratification, Congress re-enacted the act, under the belief that what- 
ever doubts may have previously existed of its validity, they were re- 
moved Iw the amendment.* 

'"The terms, privileges and immunities are not newin the amendment : 
they w'cre in the Constitution before the amendment was adopted. They 
are found in the second section of the fourth article, which declares that 
'the citizens of each State shall be entitled to all privileges and immu- 
nities of citizens in the several States,' and they have been the subject of 
frequent consideration in judicial decisions. In Corfield vs. Coryell,t 
Mr. Justice Washington said he had ' no hesitation in confining these ex- 
pressions to those privileges and immunities which were, in their nature, 
fundamental ; which belong of right to citizens of all free governments, 
and which have at all times been enjoyed by the citizens of the several 

* May 31st, 1870; 16 Stat, at Large, 144. 
t 4 Washington, Cir. Ct., 380. 



150 

States which compose the Union, from the time of their becoming free, 
independent, and sovereign ;' and, in considering what these fundamen- 
tal privileges were, he said that perhaps it would be more tedious than 
difficult to enumerate them, but that they might be 'all comprehended 
under the following general heads : protection by the government ; the 
enjoyment of life and liberty, with the right to acquire and possess prop- 
erty of every kind, and to pursue and obtain happiness and safety, sub- 
ject, nevertheless, to such restraints as the government may justly pre- 
scribe for the general good of the whole.' This appears to me to be a 
sound construction of the clause in question. The privileges and immu- 
nities designated are those ?y/\;"(?/t 0/ J7"r/7ii &e?o«(7 to the citizens of all free 
(/oi'i'rnmeiits. Clearly among these must be placed the right to pursue a 
lawful eniplo^yment in a lawful manner, without other restraint than 
such as equally atfects all persons. In the discussions in Congress upon 
the passage of the civil rights act repeated reference was made to this 
language of Mr. Justice Washington. It was cited by Senator Trumbull 
with the observation that it enumerated the very rights belonging to a 
citizen of the United States set forth in the first section of the act, and 
with the statement that all persons born in the United States, being 
declaVed by the act citizens of the United States, would thenceforth be 
entitled to the rights of citizens, and that these were the great funda- 
mental rights set forth in the act; and that they were set tbrth 'as 
appertaining to every freeman.' 

" The privileges and immunities designated in the second section of 
the fourth article of the Constitution are, then, according to the decision 
cited, those which of right belong to the citizens of all free governments, 
and they can be enjoyed under that clause by the citizens of each State in 
the several States upon the same terms and conditions as they are enjoyed 
by the citizens of the latter States. No discrimination can be made by 
one State against the citizens of other States in their enjoyment, nor can 
any greater imposition be levied than such as is laid upon its own citi- 
zens. It is a clause which insures equality in the enjoyment of these 
rights between citizens of the several States whilst in the same State. 

" Nor is there anything in the opinion in the case of Paul vs. Virginia'^ 
which at all militates against these views, as is supposed by tiie major- 
ity of the court. 

" The whole purport of the decision [in that case] was, that citizens of 
one State do not carry with them into other States any special privileges 
or immunities conferred by the laws of their own States, of a corporate 
or other character. That decision has no pertinency to the questions in- 
volved in this case. The common privileges and immunities which of 
right belong to all citizens, stand on a very different footing. These the 
citizens of each State do carry with them into other States and are secured 
by the clause in question, in their enjoyment upon terms of equality with 

* 8 Wallace, lfi8. 



151 

citizens of the latter States. This eipialily in one i)ai'tieular was en- 
forced by this court in the recent case of ^\'a^(l ns. The State of Mary- 
land, rejK)rte(l in the l-Mli of Wallace. .\ stalute of that State required 
tile payment of a larger sum from anon-resident trader for a license to 
enal)]e liini to sell his merchandise in the State, tlian it did of a resident 
trader, and the court held that the statute in thus discriniinatinn- against 
the non-resident trader contravened the clause securiuLi, to tlie citizens of 
each State the privileges and immunities of citizens of the several States. 
The privilege of disposing of his property, which was an essential incident 
to his ownership, po.ssessed by the non-resident, was subjected by the 
statute of Maryland to a greater burdftu than was imposed upon a like 
privilege of her own citizens. . The privileges of the non-resident were in 
this i)articular abridged by that legislation. 

" What the clause in question did for tiie protection of the citizens of 
one State against hostile and discriminating legislation of other States, 
the fourteenth amendment does for the protection of every citizen of the 
United States against hostile and discriminating legislation against him 
in favor of others, whether they reside in tlie same or in different States. 
If, under the fourth article of the Constitution, equality of privileges 
and immunities is secured between citizens of different States, under the 
fourteenth amendment the same equality is secured between citizens of 
the United States. 

"It will not be pretended that under the fourth article of the Consti- 
tution any State could create a monopoly in any known trade or manu- 
factu^e in favor of her own citizens, or any portion of them, which would 
exclude an equal participation in the trade or manufacture monopolized 
by citizens of other States. She could not confer, for example, upon any 
of her citizens the sole right to manutacture shoes or boots or silk, or the 
sole right to sell those articles in the State, so as to exclude non-resident 
citizens from engaging in a similar manufacture or sale. The uon-resi- 
deut citizens could claim equality of privilege under the provisions of 
the fourth article with the citizens of the State exercising the monopoly 
as well as with others, and thus, as respects them, the monopoly would 
cease. If this were not so, it would be in the power of the State to ex- 
clude at any time the citizens of other States from participation in par- 
ticular branches of commerce or trade, and extend the exclusion from 
time to time so as effectually to prevent any traffic with them. 

" Now, what the clause in question does for the protection of citizens 
of one State against the creation of monopolies in favor of citizens of 
other States, the fourteenth amendment does for the protection of every 
citizen of the United States against the creation of any monopoly what- 
ever. The privileges and immunities of citizens of the United States, 
of every one of them, is secured against abridgment in any form by any 
State. The fourteenth amendment places them under the guardianship 
of the natioual authority. All monopolies in any known trade or manu- 
facture are an invasion of these privileges, ibr they encroach upon the 



152 

liberty of citizens to acquire property and i)ursiu" happiness, and were 
held void at common law in the great case ofMonopolies, decided during 
the reign of Queen Elizabeth. 

"A monopoly is defined ' to be an institution or allowance from the 
sovereign power of the State, by grant, commission, or otherwise, to any 
person or corporation, for the sole buying, selling, making, working, or 
using of anything whereby any person or persons, bodies politic or cor- 
porate, are sought to be restrained of any freedom or liberty they had be- 
fore, or hindered in their lawful trade.' All such grants relating to any 
known trade or manufacture have been held by all the judges of Eng- 
land, whenever they have come up for consideration, to be void at com- 
mon law, as destroj'ing the freedom of trade, discouraging labor and indus- 
try, restraining persons from getting an honest livelihood, and putting it 
in the power of the grantees to enhance the price of commodities. The 
deiinition embraces, it will be observed, not merely the sole privilege of 
buying and selling particular articles, or of engaging in their manufac- 
ture, but also the sole privilege of using anything by which others may 
be restrained of the freedom or liberty they previously had in any law- 
ful trade, or hindered in sucih trade. It thus covers in every particular 
the possession and use of suitable yar-ds, stables, and buildings for keep- 
ing and protecting cattle and other aninrals, and for their slaughter. 
Such establishments are essential to the free and successful prosecution 
by any Imtcher of the lawful trade of preparing animal food for market. 
The exclusive privilege of supplying such yards, buildings, and other 
conveniences for the iirosicution of this business in a large district of 
country, granted liy the act of Louisiana to seventeen persons, is as much 
a monopoly as though it had granted to the company the exclusive priv- 
ilege of buying and selling the animals themselves. It equally restrains 
the butcliers in the freedom and lilierty they previously bad and hinders 
them in their lawful trade. 

"The reasons given for the judgment in the case of Monopolies apply 
with equal force to the case at bar. In that case a patent had been 
granted to the plaintiff giving him the sole right to import playing-cards, 
and the entire traffic in them, and the sole right to make such cards 
within the realm. The defendant, in disregard of this patent, made and 
sold some gross of such cards and imported others, and was accordingly 
sued for infringing upon the exclusive privileges of the plaintiff. As to 
a portion of the cards made and sold within the realm, he pleaded that 
he was a haberdasher in London and a free citizen of that city, and as 
such had a right to make and sell them. The court held the plea good 
and the grant void, as against the common law and divers acts of Parlia- 
ment. ' All trades,' said the court, ' as well mechanical as others, which 
prevent idleness (the bane of the commonwealth) and exercise men and 
youth in labor for the maintenance of themselves and their families, and 
for the increase of their substance, to serve the Queen when occasion 
shall require, are profitable for the commonwealth, and therefore the 



153 

grant to the plaintiff to iiavc the sole inaking of them is cu/aitisf (he com- 
mon law and the benefit and tiherty of tlie anhjeet.' "••' Tlie case of Davenant 
and Hurdis was cited in sui)port of this ])osition. In that case a com- 
pany of merchant tailors in London, havioLi ixiwer by charter to make 
ordinances for the better rule and government of the company, so that 
they were consonant to law and reason, 7n;ide an ordiuiinee that any 
brother of the society who should have any cloth dressed by a cloth- 
worker, not being a brother of the society, should put one-half of his 
cloth to some brother of the same society who exercised the art of a cloth- 
worker, upon pain of forfeiting ten shillings, 'and it was adjudged that 
the ordinance, although it had the countenance of a charter, was against 
the common law, because if ims a(/ain»t the liherfi/ of the subject ; for every 
subject, by the law, has freedmn mid lilicrti/ to put his cloth to lie dremid by 
what cloth-worker he pleases, loid cannot be n.-^lrrdncd to ci rtain persons, for 
that in effect would be a monopoly, and, therefore, such ordinance, by color 
of a charter or any grant by charter to such effect, would be \ oid.' 

"Although the court, in its opinion, refers to the increase in prices and 
deterioration in quality of commodities which necessarily result from the 
grant of monopolies, the main ground of the decision was their interfer- 
ence with the liberty of the subject to pursue for his maintenance and 
that of his family any lawful trade or employment. This liberty is as- 
sumed to be the natural right of every Englishman. 

" The struggle of the Engli-sh people against monopolies forms one of the 
most interesting and instructive chapters in their history. It tinailj' ended 
in the passage of the statute of 21st James I., by which it was declared 
' that all monopolies and all commLssions, grants, licenses, charters, and 
letters-patent, to any person or persons, bodies politic or corporate, what- 
soever, of or for the sole buying, selling, making, working, or using of 
anything ' within the realm or the dominion of Wales, were altogether 
contrary to the laws of the realm and uttei'ly void, with the exception of 
patents for new inventions for a limited period, and for printing, then 
supposed to belong to the prerogative of the King, and for the prepara- 
tion and manufacture of certain articles and ordnance intended for the 
prosecution of war. 

"The common law of England, as is thus seen, condemned all monopolies 
in any known trade or manufacture, and declared void all grants of special 
privileges whereby others could be deprived of any liberty which they 
previously had, or be hindered in their hiAvful trade. The statute of 
James I., to which I have referred, only embodied the law as it had been 
previously declared by the courts of England, although frequenth' disre- 
garded by the sovereigns of that country. 

" The common law of England is the basis of the jurisprudence of the 
United States. It was brought to this country by the Colonists, together 
with the English statutes, and was established here so far as it was ap- 

* 1 Coke Eept., part XT., p. 86. 



154 

plieable to their condition. That law and the benefit of such of the 
English statutes as existed at the time of tlieir colonizAtion, and which 
they had by experience found to be applicable to their circumstances, 
were claimed by the Conj^ress of the United Colonies in 1774 as a part 
of their ' indubitable rights and liberties.'* Of the statutes, the benefit 
of which was thus claimed, the statute of James I. against monopolies 
was one of the most important. And when the colonies separated from 
the mother country, no privilege was more fully recognized or more com- 
pletely incorporated into the fundamental law of the country, than that 
every free .subject in the British Empire was entitled to pursue his hap- 
jjiness by following any of the known established trades and occupations 
of the country, subject only to such restraints as equally affected all others. 
The immortal document which proclaimed the independence of the coun- 
try declared as self-evident truths that the Creator had endowed all men 
'with certain inalienable rights, and that among these are life, liberty, and 
the pursuit of happiness ; and that to secure these rights governments are 
instituted among men.' 

"If it be said that the civil law aiul not the common law is the basis of 
the jurisprudence of Louisiana, I answer that tiie decree of Louis XVIth, 
in 1776, abolished all monopolies of trades and all special privileges of 
corporations, guilds, and trading companies, and authorized every person 
to exercise, without restraint, his art, trade, or jsrofession, and such has 
been the law of France and her colonies ever since, and that law pre- 
vailed in Louisiana at the time of her cession to the United States. 
Since then, notwithstanding the existence in that State of the civil law as 
the basis of her jurisprudence, freedom of pursuit has been always recog- 
nized as the common right of her citizens. Bat were this otherwise, the 
fourteenth amendment secures the like protection to all citizens in that 
State against any abridgment of tlieir coaimun rights, as in other States. 
That amendment was inteniled to give practical effect to the declaration 
of 177G of inalienable rights, rights which are the gift of the Creator, 
which the law does not confer, but only recognizes. If the trader in Lou- 
don could plead that he was a free citizen of that city against the en- 
forcement to his injury of monopolies, surely under the fourteenth 
amendment every citizen of the United States should be able to plead 
his citizenship of the Republic as a protection against any similar inva- 
sion of his privileges and immunities. 

"So fundamental has this privilege of every citizen to be free from dis- 
paraging and unequal enactments in the pursuit of the ordinary avoca-. 
tions of life been regarded, that few instances have arisen where the prin- 
ciple has been so far violated as to call for the interposition of the courts. 
But whenever this has occurred, with the exceptioii of the present cases 
from Louisiana, which are the most barefaced and flagrant of all, the 
enactment interfering with the privilege of the citizen has been pro- 

*Journals of Congress, Vol. 1, pp. 28-80. 



155 

nnuiifed illi'Siil and void. When a case iind(>r the same law under whieh 
llie present cases have arisen came before the Circuit Court oftlic I'niled 
States in the District of Louisiana, there was no lusitatiou on the part of 
tlie court iu(K-cIarin-- tlir law, in its cxchisiv «■ features, lo ))e an invasion 
of one »[' \]\v fiuulanuMital [)ri\ il-ges of (he eiti/en.-- 'l"lu' presidioij; jus- 
tice, in delivering the opinion of the court, observed dial it uiiL;lit be dilti- 
cult to enumerate or define what were the essential privile^es of a eitizin 
of tlu' L'nitcd States, which a State could Jiot by its laws invade, but that 
so tar as the question under consideration was concerned, it might be 
safely .said that ' it is one of the privileges of every American (titizen to 
adopt and follow such lawful industrial pursuit, not injurious to the 
community, as he may see tit, without unreasonable regulation or mo- 
lestation, and without being restricted by any of those unjust, oppressive, 
and otlious manopolies or exclusive privilege-; which base been con- 
demned by all free governments.' And again, " there is no more sacred 
right of citizenship than the right to pursue uiimolestetl a lawi'ul cmploy- 
nu'ut in a lawful manner. It is nothing nu)ro nor less than the sacred 
right of labor.'" 

Otliof cases were cited in support oi" the po.sition of the 
opinion. The Judge conchided us follows : 

" In all these cases there is a recognition of the equality of right among 
citizens in the pursuit of the ordinary avocations of life, and a declara- 
tion that all grants of exclusive privileges, in contravention of this 
equality, are against common right and void. 

" This equality of right, with exemption from all disparaging and partial 
enactments, in the lawful pursuits of life, throughout the whole country, 
is the distinguishing privilege of citizens of the United States. To them, 
everywhere, all pursuits, all professions, all avocations are open Avithout 
other restrictions than such as are imposed equally upon all othei-s of 
the same age, sex, and condition. The. State may prescribe such regula- 
tions for every pursuit and calling of life as will promote the public 
health, secure the good order and advance the general prosperity of 
society, but when once prescribed, the pursuit or calling must be free to 
be followed by every citizen who is within tlu- conditions designated, 
and will conform to the regulations. Tiiis is the fundamental idea upon 
which our institutions rest, and unless adhered to in the legislation of 
the country our government will be a republic only in name. The four- 
teenth amendment, in my judgment, makes it essential to the validity of 
the legislation of every State that this equality of right .should be re- 
spected. How widely this eiinality has been departed from : how en- 
tirely rejected and trampled upon by the act of Louisiana, I ha\e already 
shown. And it is to me a matter of profound regret that its validity is 

* Live vStock, &c., Association vs. The Crescent City, lic, Company, 1 
Abbott's U. S. Rep., p. 398. 



156 

recognized by a majority of this court, for by it the right of free labor, 
one of the most sacred and imprescriptible rights of man, is violated.* 
As stated by the Supreme Court of Connecticut in tlie case cited, grants 
of exclusive privileges, such as is made by the act iu question, are op- 
posed to the whole theory of free government, and it requires no aid from 
any bill of rights to render them void. That only is a free government, 
in the American sense of the term, under which the inalienable right of 
every citizen to pursue his happiness is unrestrained, except by just, 
equiil, and impartial laws."}" 



The Power of the State to Control the Compensation 
Receivable for the Use of Private Property, and for 
Services in connection with it. — -The Chicago Ware- 
house Case. 

It is a recognized principle under all governments that 
every one must hold, use, and eiijoj' his property subject 
to such restrictions as the legislative authority of the State 

*"The property which every man has in his own labor," says Adam 
Smith, "as it is the original foundation of all other property, so it is the 
most sacred and inviolable. The patrimony of the poor man lies in the 
strength and dexterity of his own hands ; and to hinder him from em- 
ploying this strength and dexterity in what manner he thinks proper, 
witliout injui-y to his neighboi-, is a plain violation of this most .'acred 
property. It is a nianilcst encroachment upon the just liberty both of 
the workman and of those who might be disposed to employ him. As it 
hinders the one from working at w hat lie thinks proper, so it hinders the 
others from eniploying whom they think proper." — (Smith's Wealth of 
Nations, b. 1, ch. 10, part 2.) 

In the edict of Louis 16th, in 1776, giving freedom to trades and pro- 
fessions, prepared by his minister, Turgot, he recites the contributions 
that had been made by the guilds and trade companies, and says : " It 
was the allurement of these fiscal advantages undoubtedly that prolonged 
the illusion and concealed the immense injury they did to industry and 
their infraction of natural right. This illusion had extended so far that 
some persons asserted that tlie right to work was a royal privilege which 
the king might sell, and that his subjects were bound to purchase from 
him. We hasten o correct this error and to repel the conclusion. God iu 
giving to man wants and desires rendering labor necessary for their satis- 
faction, conferred the right to lal)or njion all men, and this property is 
the first, most sacred and imprescriptible of all." . . . He, therefore, 
regards it " as the first duty of his justice, and the worthiest act of be- 
nevolence, to free his subjects from any restriction upon this inalienable 
right of humanity." 

t "Civil liberty, the great end of all human society and government, is 
that state in which each individual has the power to pursue his own hap- 
piness according to his own views of his interest, and the dictates of his 
conscience, unrestrained, except by equal, just, and impartial laws." — (1 
Sharsvvood's Blackstone, 127, note 8.) 



157 

may prcseribo for the good order, pcneo, honltli, and nioi-als 
of the community, and so as not to iiilciicro willi tlie 
equal use and enjoyment by otliers of their property. 
And every one must, also, hold his property' suliject to 
taxation tor the suiii)ort of government, ov to he ayjpro- 
priated \'oy publie [>ur[>oses, upon a rt'gular appraisement 
and payment of its vahie. l)Ut uidess tliere is some spceial 
privilege conferred by the government in connt'etion witli 
one's property or with its use, interlerenee with his con- 
trol over it for any other purpose has not genei'ally been 
considered in this country, of hUe years, a legitimate sub- 
ject of legislation. Formerly, in European governments, 
where, theoretically, all power was in the sovereign, or in 
legislative assemblies or councils sitting under his sanction, 
the case was ditferent. Numerous regulations, as to the 
use of property and the compensation receivalde for its 
use, were there prescribed by law. In England, also, this 
was a common thing ; and many acts of legislation have 
been adopted in this country from the fact that precedents 
for like legislation have existed there, without considering 
their propriet}' or validity under our ditlerent system. 

In the recent case of Munn & Scott against the State 
of lUinois, this subject was brought to the consideration 
and judgment of the Supreme Court of the United 
States, and the decision rendered has attracted unusual 
attention as indicating a departure fi-oiu what was pre- 
viously considered to l)e the settled rule in this c;)untry. 
Munn & Scott were wai'ehousemen in Cliicago, Illinois, 
engaged in the storage of grain. They had constructed 
their warehouse and elevator in 1862 with their own 
means, upon ground leased by them for that purpose; and 
from that time until the filing of an information against 
them by the State, they had transacted the business of re- 
ceiving and storing grain for hire. The rates of storage 
charged by them were annually established by arrange- 
ment with the owners of ditferent elevators in Chicago, 
and were published in the month of .Tanuary. In 1.S70 



158 

tlie State of Illinois adopted a new eonstitntion. and l)y it 
''all elevators or storehouses where grain, or other prop- 
erty, is stored for a compensation, whether the property 
stored he kept separate or not, are declared to be public 
warehouses." 

In April, 1871, the legislature of the State passed an 
act to regulate these warehouses, thus declared to be pub- 
lic, and the warehonsing and inspection of grain, and to 
give effect to this article of the constitution. By that act, 
public warehouses, as defined in the constitution, were di- 
vided into three classes, the first of which embraced all 
warehouses, elevators, or granaries located in cities having 
not less than one hundred thousand inhabitants, in which 
grain was stored in bulk, and the grain of different owners 
was mixed together, or stored in such manner that the 
identity of difi'erent lots or parcels could not be accurately 
preserved. To this class the warehouse of Munn & Scott 
belonged. The act prescribed the maximum of charges 
which the proprietor, lessee, or manager of the warehouse 
was allowed to make for storage and handling of grain, 
including the cost of receiving and dehvering it, for the 
first thirty days or any part thereof, and for each succeed- 
ing fifteen days or any part thereof; and it required him 
to procure from the circuit court of the county a license 
to transact business as a public warehouseman, and to give 
a bond to the people of the State in the penal sum of ten 
thousand dollars for the faithful performance of his duty 
as such warehouseman of the first class, and for his full 
and unreserved compliance with all laws of the State in 
relation thereto. The license was made revocable by the 
circuit court upon a summary proceeding for any violation 
of such laws. And a penalty was imposed upon every 
person transacting business as a public warehouseman of 
the first class without first procuring a license, or continu- 
ing in such business after his license had been revoked, of 
not less than one hundred or more than five hundred dol- 
lars for each day on which the business was thus carried 



159 

on. The court was nlso antliorizod to rci'nsc^ lor one vt^ir 
to renew tlie license, ov to gTant a now one to any jitTson 
whose license had l)een revoked. The maximum of 
cliaru'es pi'cserihed hy the act for tlie receipt and storage 
of grain was dift'erent from that wliich Munn & ^Scott had 
prc\'ionsly charged, and wliich had heen agreed to hy the 
owners of the grain, yiore extended periods of storage 
were required of them than they formeidy gaA'c for the 
same charges. What they formerly charged for the first 
twenty days of storage, the act allowed them to charge 
only lor the first thii'ty days of storage ; and what they 
formerly charged for each succeeding ten days after the 
first twenty, the act allowed them to charge only for each 
succeeding fifteen days after the first thirty. Munn & 
Scott, deeming that they had a right to use their own prop- 
erty in such manner as they desired, not inconsistent with 
the equal right of others to a like use, and denying the 
power of the legislature to fix prices for the use of their 
property and their services in coimection with it, refused 
to comply with the act hy taking out the license and giv- 
ing the hond required; hut continued to carry on the busi- 
ness and to charge for receiving and storing grain such 
prices as they had been accustomed to charge, and as had 
been agreed npon between them and the owners of the 
grain. For thus transacting their business without pro- 
curing a license as required by the act, they were prose- 
cuted and fined, and the judgment against them was 
affirmed l:)y the Supreme Court of the State. The case 
was then carried to the Supreme Court of the United 
States. 

The question thus presented for adjudication was whether 
it is within the conqjetency of a State to fix the compensa- 
tion which an individual may receive for the use of his 
own property in his private business and for his services in 
connection with it ? It was argued with great ability by 
distinguished counsel, Messrs. Goudy and Jewett, for 
Munn ifc Scott, and the Attornev-General of Illinois, for 



160 

the State. The Supreme Coiii't affirmed the judgment, 
two judges only, Field and Strong, disagreeing with it. 
Chief Justice Waite gave the opinion of the court; Judge 
Field filed a dissenting opinion. 

The Chief Justice, after stating generally that when 
one becomes a member of society he necessarily parts with 
some rights or privileges wliicli as an individual, not 
ati'ected by his relations to others, he might retain; that 
government acting for all, under what are termed its po- 
lice powers, regulates the conduct of its citizens toward 
each other, and the manner in which each shall use his 
property when such regulation becomes necessary for the 
public good, and that in their .exercise it has been custom- 
ary in England from time immemorial, and in this country 
from its first colonization, to regulate ferries, common car- 
riers, hackmen, bakers, millers, wharfingers, and innkee|)- 
ers, said as follows : 

"From this it is apparent that, down to the time of the adoption ofthe 
fourteenth amendment, it was not supposed that statutes regulating the 
use, or even the price of the use, of private property necessarily deprived 
an owner of his property without due process of law. Under some cir- 
cumstances they may, but not under all. The ameudment does not 
change the law in this particular ; it simpl}' prevents the States from 
doing that which will operate as such a deprivation. 

"This brings us to inquire as to the principles upon which this power 
of regulation rests, in order that we may determine what is within and 
what is without its operative effect. Looking, then, to the common law, 
from whence came the right, which the Constitution protects, we find that 
when private property is 'affected with a public interest, it ceases to be 
juris prlvati only.' This was said by Lord Chief Justice Hale more than 
two hundred years ago, in his treatise De Fortibus Maris, (1 Harg. Law 
Tracts, 78,) and has been accepted without objection as an essential ele- 
ment in the law of property ever since. Property does become clothed 
with a public interest when used in a manner to make it of public conse- 
quence, and affect the community at large. When, therefore, one de- 
votes his property to a use in which the public has an interest, he, in 
effect, grants to the public an interest in that use, and must submit to be 
controlled by the public for the common good, to the extent of the inter- 
est he has thus created. He may withdraw his grant by discontinuing 
the use ; but so long as he maintains the use he must submit to the con- 
trol."— (94 U. S., 125-6.) 



101 

The (uu'triiu' \\vvo annonueod as to propm-ty beiiiti' 
affected with a }ml)lie interest, and the statement of the 
circunistances under whieli property is thus ati:eeted, con- 
stitute the principle of the decision, the reason of the judg- 
ment rendered. 

Several cases were also cited hy the Chief .Justice in 
supposed support of his position. Judge Field, as stated 
above, tiled a dissenting opinion. In that he answered the 
position of the Chief Justice, and examined the authorities 
referred to l)y him, and in the view of many very able 
judges and lawyers overthrew the ]>osition and showed 
that the authorities sustain the very contrary of the doc- 
trine to uphold wliich they were invoked. Speaking for 
himself and his associate the Judge said as follows : 

" The declaration of the constitution [of Illinois] of 1870, that pri- 
vate buildings used for private purposes shall be deemed public institu- 
tions, does not make them so. The receipt and storage of grain in a build- 
ing erected by private means for that purpose does not constitute the 
building a public warehouse. There is no magic in the language, though 
used by a constitutional convention, which can change a private business 
into a public one, or alter the character of the building in which the 
business is transacted. A tailor's or a shoemaker's .shop would still re- 
tain its private character even though the assembled wisdom of the State 
should declare by organic act or legislative ordinance that such a place 
was a public workshop, and that the workmen were public tailors or pub- 
lic shoemakers. One might as well attempt to change the nature of col- 
ors by giving them a new designation. The defendants were no more 
public warehousemen, as justly observed by counsel, than the merchant 
who sells his merchandise to the public is a public merchant, or the 
blacksmith who shoes horses for the public is a public blacksmith ; and 
it was a strange notion that by calling them so they would be brought 
under legi.slative control. 

" The Supreme Court of the State— divided, it is true, by three to two of 
its members — has held that this legislation was a legitimate exercise of 
State authority over private business ; and the Supreme Court of the 
United States, two only of its members dissenting, has decided that there 
is nothing in the Constitutiou of the United States, or its recent amend- 
ments, which impugns its validity. It is, therefore, with diffidence I 
presume to question the soundness of the decision. 

" The validity of the legislation was, among other grounds, assailed in 
the State court as being in conflict with that provision of the State con- 
stitution which declares that no person shall be deprived of life, liberty, 
11 



1G2 

or property without due process of law, ami with that provision of the 
14th ameudment of the federal Constitution which imposes a similar re- 
striction upon the action of the State. The State court held in substance 
that the constitutional provision was not violated so long as the owner 
was not deprived of the title and possession of his property ; and that it 
did not deny to the legislature the power to make all needful rules and 
regulations respecting the use and enjoyment of the property, referring, 
in support of the position, to instances of its action in prescribing the in- 
terest on money, in establishing and regulating public ferries and public 
mills, and fixing the compensation in the shape of tolls, and in delegating 
power to municipal bodies to regulate the charges of hackmen and dray- 
men and the weight and price of bread. In this court the legislation was 
also assailed on the same ground, our jurisdiction arising upon the clause 
of the 14th amendment ordaining that no State shall deprive any person 
of life, liberty, or property without due process of law. But it. would 
seem from its opinion that the court holds that property loses something 
of its private character when employed in such a way as to be generally 
useful. The doctrine declared is that property ' becomes clothed with a 
public interest when used in a manner to make it of public consequence 
and atfect the community at large ;' and from such clothing the right of 
the legislature is deduced to control the use of the property and to de- 
termine the compensation which the owner may receive for it. "When 
Sir Matthew Hale, and the sages of the law in his day, spoke of property 
as affected by a public interest, and ceasing from that cause to be juris 
X)rivati solely, that is, ceasing to be held merely in private right, they re- 
ferred to property dedicated by the owner to public uses, or to property 
the use of Avhich was granted by the government, or in connection with 
which special privileges were conferred. Unless the propertj^ was thus 
dedicated, or some right bestowed by the government was held with the 
property, either by specific grant or by prescription of so long a time as 
to imply a grant originally, the property was not affected by any public 
interest so as to be taken out of the category of property held in private 
right. But it is not in any such sense that the terms ' clothing property 
with a public interest ' are used in this case. From the nature of the 
business under consideration — the storage of grain — which, in any sense 
in Avhich the word can be used, is a private business, in which the public 
are interested only as they are interested in the storage of otlier products 
of the soil, or in articles of manufacture, it is clear that the court intended 
to declare that whenever one devotes his property to a business which is 
useful to the public— 'affects the community at large ' — the legislature 
can regulate the compensation which the owner maj^ receive for its use 
and for his own services in connection with it. ' When, therefore,' says the 
court, 'one devotes his property to a use in which the public has an in- 
terest, he, in effect, grants to the public an interest in that use, and must 
submit to be controlled by the public for the common good to the extent 
of the interest he has thus created. He may withdraw his grant by dis- 



1G8 

confinuiiiji, tlio use. l)nt so long as ho iiuiiiitains tlio use ho must submit 
to the control.' The building used by the defondants was lor the storage 
of grain; in such storage, says the court, the puldic has an interest; 
thorotbre tlu; dofendants, by devoting the building to that storage, have 
granted to tlio public an interest in that use, and must submit to have 
their compen,sation regulated by the legislature. 

"If this be sound hnv, if there be no protection either in the jjrinciples 
upon which our republican government is founded, or in the prohibitions 
of the Constitution against such invasion of private rights, all property 
and all business in the State are held at the mercy of a majority of its 
legislature. The public has no greater interest in the use of buildings 
for the storage of grain than it has in the use of buildings for the resi- 
dences of families, nor, indeed, anything like so great an interest ; and, 
according to the doctrine announced, the legislature may fix the rent of 
all tenements used for residences, without reference to the co.st of their 
erection. If tlie owner does not like the rates prescribed, he may cease 
renting his houses. He has granted to the public, says the court, an in- 
terest in the use of the buildings, and ' he may withdraw his grant by 
discontinuing the use ; but so long as he maintains the use he must sub- 
mit to the control.' The public is interested in the manufacture of cot- 
ton, woolen, and silken fabrics, in the construction of machinery, in the 
printing ami publication of books and periodicals, and in the making of 
utensils of every variety, useful and ornamental ; indeed, there is hardly 
an enterprise or business engaging the attention and labor of any consid- 
erable portion of the community in which the public has not an interest 
in the sense in which that term is used by the court in its opinion ; and 
the doctrine which allows the legislature to interfere with and regulate 
the charges which the owners of property thus employed shall make for 
its use, that is, the rates at which all these different kinds of business 
shall be carried on, has never before been asserted, so tar as I am aware, 
by any judicial tribunal in the United States. 

'■ The doctrine of the State court, that no one is deprived of his prop- 
erty, within the meaning of the constitutional inhibition, so long as he 
retains its title and po.sse.ssion, and the doctrine of this court, that when- 
ever one's property is used in such a manner as to atfect the community 
at large, it becomes by that fact clothed with a public interest and ceases 
to he. juris privati only, api)ear to me to destroy for all useful purposes the 
efiicacj^ of the constitutional guaranty. All that is beneficial in property 
arises from its use and the fruits of that use ; and whatever deprives a 
person of them deprives him of all that is desirable or valuable in the 
title and possession. If the constitutional guaranty extends no further 
than to prevent a deprivation of title and possession, and allows a de- 
privation of use and the fruits of that use, it does not merit the encomi- 
ums it has received. Unless I have misread the history of the provision 
now incorporated into all our State constitutions, and by the fifth and 
fourteenth amendments into our federal Constitution, and have misun- 



1G4 

derstood the interpretation it has received, it is not thus limited in its 
scope and thus impotent for good. It has a much more extended opera- 
tion than either court, State or federal, has given to it. The provision, it 
is to be observed, places property under the same protection as life and 
liberty. Except by due pi-ocess of law no State can deprive any person 
of either. The provision has been supposed to secure to every individual 
the essential conditions for the pursuit of happiness, and for that reason 
hiis not been heretofore, and should never be, construed in any narrow or 
restricted sense. 

"No State 'shall deprive any person of life, liberty, or property with- 
out due process of law,' says the 14th amendment to the Constitution. 
By the term ' life,' as here used, something more is meant than mere ani- 
mal existence. The inhibition against its deprivation extends to all those 
limbs and faculties by which life is enjoyed. The i)rovision equally pro- 
hibits the mutilation of the body by the amputation of an arm or leg, or 
the putting out of an eye, or the destruction of any other organ of the 
body through which the soul communicates with the outer world. The 
deprivation, not only of life, but of whatever God has given to every one 
with life, for its growth and enjoyment, is prohibited by the provision in 
question, if its efficacy be not frittered away by judicial decision. 

"By the term 'liberty,' as used in the provision, something more is 
meant than mere freedom from physical restraint or the bounds of a 
prison. It means freedom to go where one may choose, and to act in such 
manner, not inconsistent with the equal rights of others, as his judgment 
may dictate for the promotion of his happiness — that is, to pursue such 
callings and avocations as may be most suitable to develop his capacities 
and give to them their highest enjoyment. 

" The same liberal construction which is required for the protection of 
life and liberty, in all particulars in which life and liberty are of any 
value, should be applied to the protection of private jiroperty. If the 
legislature of a State, under pretence of providing for the public good, 
or for any other reason, can determine, against the consent of the owner, 
the uses to which private property shall be devoted, or the prices which 
the owner shall receive for its uses, it can deprive him of the property as 
completely as by a special act for its confiscation or destruction. If, for 
instance, the owner is prohibited from using his building for the purposes 
for which it was designed, it is of little consequence that he is permitted 
to retain the title and ijossession. Or if he is compelled to take as com- 
pensation for its use less than the expenses to which he is subjected by 
its ownership, he is for all practical purposes deprived of the property, as 
effectually as if the legislature had ordered his forcible dispossession. If 
it be admitted that the legislature has any control over the compen- 
sation, the extent of that compensation becomes a mere matter of legis- 
lative discretion. The amount fixed will operate as a partial destruc- 
tion of the value of the property, if it fall below the amount which the 
owner would obtain by contract, and, practically, as a complete destrue- 



165 

lion, il" it ))(■ less than the cost ot' ret:uiiiiig its possession. There is, in- 
deed, no protection of any valne under the constitutional provision which 



does not c 


xtend 


to 


the 


■ use 


and 


income 


of t 


he 


l)roi)erty as well as to its 


title and ) 


lossessi 


on. 


















'•Tliis (•! 


>urt Iki 


IS ll 


ere 


■tolu 


re he 


Id 


in ni; 


my it 


1st; 


inces tiiat a constitutional 


provision 


intend. 


■d 1 


■or 


the 


pn)t( 


•eti 


on ol' 


ri-hts. 


)i' juivate property should 


belil.erall 


y const 


rn( 


■d. 


It 1 


lias s( 


) h 


.•hi il 


1 the 


nil 


melons cases where it has 


))een calle. 


d upon 


1 to 


iii 


ive ( 


dtect 


to 


the 


prov 


isi( 


)n ])i'ohibitin<j; the States 


IVo.u lejiis 


lation 


iin] 


)airing 


the obli 


ji'ation of 


COl 


iitracts; tin; provision be- 



ing cionstrued not only to secure the contract itself from direct attack, 
but all the essential incidents which give it value and enable its owner 
to enlbrce it. Thus, in Bronson vs. Kinzie, reported in the 1st of How- 
ard, it was Iield that an act of the Legislature of Illinois giving to a mort- 
gagor twtdve months williin which to redeem his mortgaged property 
from a judicial sale, and prohibiting its sale for less than two-thirds of its 
appraised value, was void as applied to mortgages executed prior to its 
passage. It was contended, in support of the act, that it affected only 
the remedy of the mortgagee and did not impair the contract; but the 
court replied that there was no substantial difference between a retro- 
spective law declaring a particular contract to be abrogated and void and 
one which took away all remedy to enforce it, or encumbered the remedy 
with conditions that rendered it useless or impracticable to pursue it. 
And, referring to the constitutional provision, the court said, speaking 
through Mr. Chief Justice Taney, that ' it would be unjust to the mem- 
ory of the distinguished men who framed it to suppose that it was de- 
signed to protect a mere barren and abstract right, without any practical 
operation upon the business of life. It was undoubtedly adopted as a 
part of the Constitution for a great and useful purpose. It was to main- 
tain the integrity of contracts and to secure their faithful execution 
througliout this Union bj- placing them under the protection of the Con- 
stitution of the United States. And it would but ill become this court, 
under any circumstances, to depart from the plain meaning of the words 
used and to sanction a distinction between the right and the remedy 
which would render this provision illusive and nugatory, mere words of 
form, affording no protection'and producing no practical result.' 

" And in Pumpellj^ vs. Green Bay Company, reported in the 13th of 
Wallace, the language of the court is equally emphatic. That case arose 
ill Wisconsin, the constitution of which declares, like the constitutions of 
nearly all the States, that private property shall not be taken for public 
use without just compensation; and this court held that the flooding of 
one's land by a dam constructed across a river under a law of the State 
was a taking within the jirohibition, and required compensation to be 
made to the owner of the land thus flooded. The court, speaking 
through Mr. Justice Miller, said : 'It would be a very curious and un- 
satisfactory result, if, in construing a provision of constitutional law, 
always understood to have been adopted for protection and security to 



166 

the rights of the individual lus against the government, and which has 
received the commendation of jurists, statesmen, and commentators, as 
placing the just principles of the common law on that subject be^'ond the 
power of ordinary legislation to change or control them, it shall be held 
that if the government refrains from the absolute conversion of real prop- 
erty to the uses of the public it can destroy its value entirely, can inflict 
irreparable and permanent injury to any extent, can, in effect, sul)ject it 
to total destruction, without making any compensation, because, in the 
narrowest sense of the word, it is not taken for the public use. Such a 
construction would pervert the constitutional provision into a restriction 
on the rights of the citizen, as those rights-stood at the common law, in- 
stead of the government, and make it an authority for invasion of private 
right under the pretext of the public good, which had no warrant in the 
laws or practices of our ancestors.' The views expressed in these citations, 
applied to this case, would render the constitutional provision invoked 
by the defendants effectual to protect them in the uses, income, and rev- 
enues of their property as well as in its title and possession. The con- 
struction actually given by the Stale court and by this court makes the 
provision, in the language of Taney, a protection to ' a mere barren and 
abstract right, without any practical operation upon the business of life,' 
and renders it ' illusive and nugatory, mere words of form, affording no 
protection and producing no practical result.' 

" The power of the State over the property of the citizen under the 
constitutional guaranty is well defined. The State may take his prop- 
erty for public uses upon just compensation being made therefor. It 
may take a portion of his propeity by way of taxation for the support of 
the government. It may control the use and possession of his property 
so far as may be necessary for the protection of the rights of others, 
and to secure to them the equal use and enjoyment of their property. 
The doctrine that each one must so use his own as not to injure his 
neighbor — sic utere tuo ut alienum non Isedas — is the rule by which every 
member of society must possess and enjoy his property ; and all legisla- 
tion essential to secure this common and equal enjoyment is a legitimate 
exercise of State authority. Except in cases where property may be de- 
stroyed to arrest a conflagration or the ravages of pestilence, or be taken 
under the pressure of an immediate and overwhelming necessity to pre- 
vent a public calamity, the power of the State over the property of the 
citizen does not extend beyond such limits. 

" It is true that the legislation which secures to all protection in their 
rights and the equal use and enjoyment of their property embraces an al- 
most infinite variety of subjects. Whatever aftects the peace, good order, 
morals, and health of the community comes within its scope, and every 
one must use and enjoy his property subject to the restrictions which 
sirch legislation imposes. What is termed the police power of the State, 
which from the language often used respecting it one would suppose to 
be an undefined and irresponsible element in government, can only in- 



i(;7 

tertL-re witli tlie coiuUict of iiuUviduals in thi'ir iiitercour.se with eaeh 
other, and in the use of tlieir property', so far as may he ret^uired to se- 
cure these objects. The cjnipensatiou wiiich the owners of property, 
not havinj^ any special rights or privileges from the government in con- 
nection with it, may demand for its use, or for their own services in 
union with il. forms no clement of consideration in i)rescribing regula- 
tions for tliat purpose. If one construct a buihliug in a city, the State, 
or the municipality exercising a delegated power from the State, may 
require its walls to be of suiiicieut thickness for the uses intended ; it 
may forbid tke employment of inflammable materials in its construc- 
tion, so as not to endanger the safety of his neighbors ; if designed as a 
theatre, church, or public hall, it may prescribe ample means of egress so 
as to atlbrd facility for escape in case of accident ; it may forbid the 
storage in it of powder, nitro-glyceriae, or other explosive material ; it 
may require its occupants daily to remove decayed vegetable and animal 
matter which would otherwise accumulate and engender disease; it may 
exclude from it all occuy.itions and business calculated to disturb the 
neighborhood or infect the air. Indeed, there is no end of regulations 
with respect to the use of property which may not be legitimately pre- 
scribed, having for their object the peace, good order, safety, and health of 
the community, thus securing to all the equal enjoyment of their property ; 
but in establishing these regulations it is evident that compensation to the 
owner for the use of his property, or for his services in union with it, is not 
a matter of any imijortauce ; whether it be one sum or another does not af- 
fect the regulation, either in respect to its utility or mode of enforcement. 
One may go in like manner through the whole round of regulations auth- 
orized by legislation. State or municipal, under what is termed the police 
power, and in no instance will he tind that the compensation of the owner 
for the use of his property has any influence in establishing them. It is 
only where some right or i^rivilege is conferred by the government or 
municipality upon the owner which he can use in connection with his 
property, or by means of which the use of his property is rendered more 
valuable to him, or he thereby enjo^'s an advantage over others, that 
the compensation to be received by him becomes a legitimate matter of 
regulation. Submission to the regulation of compensation in such cases 
is an implied condition of the grant, and the State in exercising its power 
of prescribing the compensation oul}^ determines the conditions upon 
which its concession shall be enjoyed. When the pri\ ilege euds the 
power of regulation ceases. 

" Jurists and writers on public law ^flnd authority for the exercise of 
this police power of the State and the numerous regulations which it 
prescribes in the doctrine already stated, that every one must use and en- 
joy his property consistently with the rights of others and the equal use 
and enjoyment by them of their property. ' The police power of the 
State,' says the Supreme Court of Vermont, ' extends to the protection of 
the lives, limbs, health, comfort, and quiet of all persons, and the pi'otec- 



168 

tion of all property in the State. According to the maxim, sic uiere tuo 
ut alienum non Isedas, which being of universal application, it must, of 
course, be within the range of legislative action to define the mode md 
manner in which every one may so use his own as not to injure others.'^ ' We 
think it a settled principle growing out of the nature of well-ordered 
civil society,' says the Supreme Conrt of Massachusetts, ' that every holder 
of property, however absolute and unqualified may be his title, holds it 
under the implied liability that his use of it shall not be injurious to the 
equal enjoyment of others having an equal right to the enjoyment of their prop- 
erty, nor injurious to the rights of the commicnify.'f In his commentaries, 
after speaking of the protection afforded by the Constitution to private 
property. Chancellor Kent says : ' But though property be thus protected, 
it is still to be understood that the lawgiver has the right to prescribe the 
mode and manner of using it, .so far as may he necessary to prevent the abuse 
of the right, to the injury or annoyance of others, or of the public. The gov- 
ernment may, by general regulations, interdict such uses of property as 
would create nuisances and become dangerous to the lives, or health, or 
peace, or comfort of the citizens. Unwholesome trades, slaughter-houses, 
operations offensive to the senses, the deposit of powder, the application 
of steam-power to propel cars, the building with combustible materials, 
and the burial of the dead may all be interdicted by law, in the midst of 
dense masses of populati(m, on the general and rational principle that every 
person ought so to use his property as not to injure his neighbors, and that pri- 
vate interest must he subservient to the general interests of the community.'^. 

" The italics in these citations are mine. The citations show what I 
have already stated to be tlie case, that the regulations which the State, 
in the exercise of its police power, authorizes with respect to the use of 
property are entirely independent of any question of compensation for 
such use or for the services of the owner in connection with it. 

" Tliere is nothing in the character of the business of the defendants as 
warehousemen which called for the interference complained of in this 
case. Their buildings are not nuisances ; their occupation of receiving 
and storing grain infringes upon no rights of others, disturbs no neigh- 
borhood, infects not the air, and in no respect prevents others from using 
and enjoying their property as to them may seem best. The legislation 
in question is nothing less than a bold assertion of absolute power by the 
State to control at its discretion the property and business of the citizen, 
and fix the compensation he shall receive. The will of the legislature is 
made the condition upon which the owner shall receive the fruits of his 
property and the just reward of his labor, industry, and enterprise. 
' That government,' says Story, ' can scarcely be deemed to be free where 
the rights of property are left solely dependent upon the will of a legisla- 

* Thorpe vs. Rutland & Burlington R. R. Co., 27 Vt., 149. 
f Commonwealth vs. Alger, 7 Cushing, 84. 
j 2 Kent, 340. 



169 

tive body without any rostraint. Tlie I'liiidanuMital maxims of a free 
sinvcrnniont seem to roqnire that the riglits* of ])cisoiial lihoity and pri- 
vate pro)iertj- should be held sacred.'* The decision of the court in this 
case nives unrestrained license to legislative will. 

"The .several instances mentioned by counsel in the arunnuMit and by 
the court in its opinion, in wliich leuislation has fixed liie compen.sation 
wiiich ])arlies may receive lor tlie usr of their projierly and services, do 
not militate a.^ainstthe views I iiave exiircsscd ol'tlu' jiowrr of the State 
over the property of the citizen. Tlu'V were mostly cases of pul)lic fer- 
ries, bridges, and turnpikes, of whartingers, hackmen, and draymen, and 
of interest on money. In all these cases, except that of interest on money, 
which I shall presently notice, there was some special privilege granted 
by the State or municipality; and no one, I suppose, has ever conteiided 
that the State had not aright to prescril)e the conditions upon which 
such privilege should 1)e enjoyed. Tlie State in sncli cases exercises no 
greater right than an indi\ idual may exercise o\ er the use of his own 
]>roperty when leased or loaned to others. The conditions upon which 
the privilege shall be enjoyed being stated or implied in the legislation 
authorizing its grant, no right is, of counse, impaired by their enforce- 
ment. The recipient of the privilege in effect stipulates to comply with 
the conditions. It matters not how limited the privilege conferred, its 
acceptance Implies an assent to the regulation of its use and the compen- 
sation for it. The privilege which the hackman and drayman have to 
the use of stands on the public streets, not allowed to the ordinary coach- 
man or laborer with teams, constitutes a sufficient warrant for the regula- 
tion of their fares. In the case of the warehousemen of Chicago, no right 
or privilege is conferred by the government upon them, and hence no as- 
sent of theirs can be alleged to justify any interference with their charges 
for the use of their property. 

" The quotations from the writings of Sir Matthew Hale, so far from 
suppoiting the positions of the court, do not recognize the interference 
of the government even to the extent which I have admitted to be legit- 
imate. They state merely that the franchise of a public ferry belongs to 
the King, and cannot be used l)y the subject except by license from him, 
or prescription time out of mind ; and that wlien the subject has a pub- 
lic wharf by license from the King, or from having dedicated his private 
wharf to the public, as in the case of a street opened by him through his 
own land, he must allow the use of the wharf for reasonable and mod- 
erate charges. Thus, in the first quotation, which is taken from his 
treatise ' De Jure Maris,' Hale says that the King has a 'right of fran- 
chise or privilege, that no man may set up a common ferry for all pas- 
sengers without a prescription time out of miiul or a charter from the 
King. He may make a ferry for his own use or the use of his family, 
but not for the common use of all the King's subjects passing that way ; 

* Wilkeson vs. Leland, 2 Peters, 657. 



170 

because it doth in conseqnent tend to a common charge, and is become a 
thing of public interest and use, and every man for his i)assage jiays a 
toll, which is a common charge, and every ferry ought to be under a pub- 
lic regulation, viz., that it give attendance at due times, keep a boat in 
due order, and take bat reasonable toll ; for if he fail in these he is fine- 
able.' Of coarse one who obtains a license from the King to establish a 
public ferry at which ' every man for his pa.ssage pays a toll,' must take 
it on condition that he charge only reasonable toll, and indeed subject to 
such regulations as the King may prescribe. 

"In the second quotation, which is taken from his treatise' De Porti- 
bus Maris,' Hale says: 'A man. for his own private advantage, may, in a 
port or town, set up a wharf or crane, and may take what rates he and 
his customers can agree for cranage, wharfage, ho usellage, pesage ; ior 
he doth no more than is lawful for any man to do, viz., makes the 
most of his own. ... If the King or subject have a public wharf, 
unto wliicli all persons that come to that port must come and unlade or 
lade their goods as for the purpose, because they are the wharves only 
licensed by the King, . . . or because there is no other wharf in that 
port, as it may fall oat where a port is newly erected, in that case there 
cannot be taken arbitrary and excessive duties for cranage, wharfage, 
pesage, &c., neither can they be enhanced to an immoderate rate, but the 
duties must be reasonable and moderate, though settled liy the King's 
license or charter. For now the wharf and crane and other conveniences 
are affected with a public interest, and they cease to he juris privati only ; 
as if a man set out a street in new building on his own laud, it is now no 
longer bare private interest, bat is affected by the public interest.' The 
purport of which is that if one have a public wharf, by license from the 
government or his own dedication, he must exact only reasonable com- 
pensation for its use. By its dedication to public u.se a wharf is as much 
brought under the common law rule of subjection to reasonable charges 
as it would be if originally established or licensed by the Crown. All 
property dedicated to public use by an individual owner, as in the case 
of land for a park or .street, falls at once, by force of the dedication, un- 
der the law governing property appropriated by the government lor sim- 
ilar purpo.ses. 

" I do not doubt the justice of ths encomiums passed upon Sir Matthew 
Hale as a learned jurist of his day, but I am unable to perceive the per- 
tinency of his observations upon public ferries and public wharves, found 
in his treatises on ' The Rights of the Sea ' and on ' The Ports of the Sea,' 
to the questions presented by the warehousing law of Illinois undertak- 
ing to regulate the compensation receivable b^^ the owners of private 
property, when that property is used for prirate purposes. 

" The principal authority cited in support of the ruling of the court is 
that of Alnutt vs. Inglis, decided by the King's Bench, and reported in 
the 12th of E:ist. But that case, so far from sustaining the ruling, estab- 
lishes, in my judgment, the doctrine that every one has a right to charge 



171 

for his property, or for its use, whatever he pleases, unh^ss he enjoys in 
eoniieetiou with it some riji;ht or priviU^ge from the government not ac- 
(">)rded to others; and even then it only decides wliat is ahovc stated in 
the quotations from Sir Matthew Hale, that he must suhmit, so long aa 
he retains the right or privilege, to reasonahle rates. In that case the 
London Dock t'ouipany, under certain acts ol' rarliament, possessed the 
exclusive right of ri'ceiviug imported goods into their warehouses hefore 
Ihe dulics were paid ; and the question was whether the conipany was 
hound to receive them for a reasonal)le reward, or whether it could arbi- 
trarily lix its compensation. In deciding the case, the Chief Justice, 
Lord Ellenhorough, .said : ' There is no doubt that the general principle is 
favored both in law and justice, that every man may fi.x what price he 
pleases upon his own property, or the use of it ; but il', for a particular 
purpose, the public have a right to resort to his premises and make use 
of them, and he have a monopoly in them for that purpose, if he will 
take the benelit of that monopoly, he must, as an ecjuivalent, perform 
the duty attached to it on reasonalde terms.' And coming to the con- 
elusion that the company's warehouses were invested with ' the monopoly 
of a public privilege,' he held that by law the company must contine it- 
self to take rea,sonable rates ; and added that if the Crown should there- 
after think it advisable to extend the privilege more generally to other 
persons and places, so that the public would not be restrained from exer- 
cising a choice of warehouses for the purpose, the company might be en- 
franchised from the restriction which attached to a monopoly; but so 
long as its warehouses were the only places which could be resorted to 
for that purpose, the company was bound to let the trade have the use of 
them for a reasonable hire and reward. The other judges of the court 
placed their concurrence in the decision upon the ground tliat the com- 
l)any possessed a legal monopoly of the business, having the only ware- 
houses where goods imported could be lawfully received without i^revious 
payment of the duties. P'rom this case it appears that it is only where 
some privilege in the bestowal of the government is enjoyed in connec- 
tion with the property, that it is affected with a public interest in any 
proper sense of the term. It is the public privilege conferred with the 
use of the property which creates the public interest in it. 

'■ In the case decided by the Supreme Court of Alabama, where a power 
granted by the city of Mobile to license bakers and to regulate the weight 
and price of bread, was sustained so far as regulating the weight of bread 
was concerned, no question was made as to the right to regulate the price.* 
There is no doubt of the competency of the State to prescribe the weight 
of a loaf of bread, as it may declare what weight shall constitute a pound 
or a ton. But I deny the power of any legislature under our government 
to lix the price which one shall receive for his property of any kind. If 
the power can be exercised as to one article it may as to all articles, and 

* 3 Ala., 137. 



172 

the prices ol' everything iVoni a calico gown to a city mansion may be the 
subject of legislative direction. 

•'Other instances of a similar character may no doubt be cited of at- 
tempted legislative interference with the rights of property. The act of 
Congress of 1820, mentioned by the court, is one of them. There Con- 
gress undertook to confer upon the city of Washington povs^er to regulate 
the rates of wharfage at private wharves, and the fees for sweeping chim- 
neys. Until some authoritative adjudication is had upon these and sim- 
ilar provisions, I must adhere, notwithstanding the legislation, to my 
opinion that those who own property liave the right to fix the compensa- 
tion at which they will allow its use, and thai those who control services 
have a right to fix the compensation at which they will be rendered. The 
chimney-sweeps may, I think, safely claim all the compensation which 
they can obtain by bargain for their work. In the absence of any con- 
tract for property or services the law allows only a reasonable price or 
compensation, but what is a reasonable price in any case will depend upon 
a variety of considerations, and is not a matter for legislative determina- 
tion. 

" The practice of regulating by legislation the interest receivable for 
the use of money, when considered with reference to its origin, is only the 
assertion of a right of the government to control the extent to which a 
privilege granted by it may be exercised and enjoyed. By the ancient 
common law it was unlawful to take any money for the nse of money ; 
all who did so were called usurers, a term of great reproach, and were ex- 
posed to the censure of the Church. And if, after the death of a person, 
it was discovered that he had been a usurer whilst living, his chattels 
were forfeited to the King, and his lands escheated to the lord of the fee. 
No action could be maintained on any promise to pay for the use of money, 
because of tlie unlawfulness of the contract. Whilst the common law 
thus condemned all usury, Parliament interfered and made it lawful to 
take a limited amount of interest. It was not upon the theory that the 
legislature could arbitrarily fix the compensation which one could receive 
for the use of property, which by the general law was the subject of hire 
for compensation, that Parliament acted, but in order to confer a privi- 
lege which the common law denied. The reasons which led to this legis- 
lation originally have long since ceased to exist, and if the legislation is 
still persisted in, it is because a long acquiescence in the exercise of a 
power, especially when it was rightfully assumed in the first instance, is 
generally received assufiicient evidence of its continued lawfulness.* 

■•10 Bacon's Abridgment, 264. The stntute of 13 Elizabeth, C. 8, 
which allows ten per cent, interest, recites " th it all usury being forbidden 
by the law of God is sin and detestable;" anil the statute of 21 James 
tiie First, reducing the rate to eight per cent., provided that nothing in 
the law should be " construed to allow the practice of usury in point of 
religion or conscience," a clause introduced, it is said, to satisfy the bish- 
opsj who would not vote for the bill without it. 



17?. 

"There was also recognized in England by tlie ancient conunon law 
certaiu privileges as belonging to the lord of the manor, which grew out 
of the state of the country, the condition of the people, and the relation 
existing l)et\veen him and his tenants under the feudal system. Among 
these was the right of the' lord to compel all the tenants within his 
manor to grind their corn at his mill. No one, thcrelbre, could set up a 
mill except by his license or by the license of the Crown, unless he 
claimed the right by prescri»ptiou, which presupposed a grant from the 
lord or Crown, and, of course, with such license went the right to regu- 
late the tolls to be received. Hence originated the doctrine which at 
onetime obtained generally in this country, that there could be no mill 
to grind corn for the public without a grant or license from the public 
authorities. It is still, I believe, asserted in some States. This doctrine 
being recognized, all the rest followed. The right to control the toll ac- 
companied the right to control the establi.shment of the mill. 

" It requires no comment to point out the radical differences between 
the ca.ses of public mills and interest on money and that of the warehouses 
in Chicago. No prerogative or privilege of the Crown to establish ware- 
liouses was ever asserted at the common law. The business of a ware- 
houseman was at common law a private bnsines.s, and is so in its nature. 
It has no special ijrivileges connected with it, nor did the law ever extend 
to it any greater protection than it extended to all other private business. 
No reason can be assigned to justify legislation interfering ^yith the legit- 
imate profits of that business that would not ecjually justify an inter- 
meddling with the bu.siness of every man in the community, so soon at 
least as his business became generally useful."* 



The Relations between the Federal Government and 
THE State Governments. — The Rights of the States. 
— The Virginia Jury Cases and the Election Cases 
FROM Ohio and Maryland. 

The governmetit of the Union is a erovernment of dele- 
gated powers. It can exercise only those powers and such 
as ma J be necessary and proper to give them full execu- 
tion. All other powers whicli are not thus delegated, and 
which are not prohibited by the Constitution, are reserved 
to the States or to the people. This is not a matter of argu- 



* See a learned note by Prof. Denslow upon the opinion of the court in 
the 16th vol., new series, of the American Law Register, p. 539-545. 



174 

nient and inference. It is the express langiiag'e of the 
tenth amendment, wliieh is as foUows : 

" The powers not delegated to the United States by the Constitution, 
nor prohibited by it to the States, are reserved to the States respectively, 
or to the peoi^le." 

All that there is of" State rights," properly understood, 
is contained in this amendment. When reference is made 
to the authority and jurisdiction of States, and not merely 
to their proprietary interests, "' rights " and "■ powers" are 
sj^nonymous terms. The rights of tlie States, or " State 
rights," as the phrase is, are nothing more than the powers 
of the States reserv^ed to them under the Constitution. 

The government of the Union is invested with great 
powers, such as are essential to present the whole country 
as one nation in its intercourse with other countries, 
whether in peace or war, and such as are essential to the 
preservation of j^eace at home, and to facilitate intercourse 
and commerce among its people. In all its po\^'~ers that 
government is supreme, and to their enforcement no im- 
pediment can be lawfully interposed. Is'o true advocate 
for the maintenance of the rights of the States can ever 
claim otherwise. The Constitution itself on its face de- 
clares that it, and laws made in pursuance thereof, " shall 
be the supreme law of the land." 

But the same supreme authority over matters delegated 
to it, which the government of the Union possesses, the 
States retain over matters not thus delegated. Over such 
matters the powers of the States are those of their orig- 
inal sovereignty. It vvas not for local matters, such as 
the management of the police of towns and cities, the 
opening of highways, the care of the sick, the education 
of children, the establishment of universities, the regula- 
tion, transfer, and descent of property, and the direction of 
the local interests of a community, that the government of 
the Union was created. It was creg,ted for the control of 
matters of common interest to all the States, which they 
could not in their separate capacities adequately manage. 



175 

Till' dual i^'oN'oninuMit oi' our iatluTs -that o!' llio 2:en- 
eral li-oViM-mnout aud tliat of the States — actiniz; to^'etlier 
solved the prohleui ol' a iVee ii'overinnent over a vast eouu- 
tr\\ end)faeiui2: dill'ereut eliinates, I'liniishino; dili'crent 
produets, aud haviiiu', iu ditlerent Bcctious, j»i'oj>le oi' dif- 
fereut hahits aud pursuits. Eaeh State can have its local 
policy to suit its people, without inteii'eriut;- with a ditt'eueut 
policy })ursued hy aiu>thei' State. Take, tor exauiple, the 
three States of Maine, Georgia, aud California. Maine, 
with its cool clinmte, its mountains of tindier, its water- 
power for manufacturing establishments, and its neigli- 
boiing fishiug-gr>»unds, may desire special legislation to 
develop its industries and promote its prosperity. Georgia, 
with its cotton fields, its bahiily air, aud its productive soil, 
may require a very different s3'Stem of measures for which 
the legislation of Maine would be unsuitable. California, 
with its gold* and silver mines, its seasons of rain and 
drought, the latter requiring [irovision for irrigation ; its 
vast production of cereals and fruits, its position on the 
Pacific Ocean encoui-aging commerce wdth Asia, may well 
call for other and diti'erent legislation. Under our federal 
system each of these States can pursue its own policy 
without au}^ jarring between them. The government of 
the Union is over all, preserving peace among them, and 
protecting them all from foreign aggression or violence. 

In the argument of the Cruikshank case before the 
Supreme Court, one of the counsel* used the followino- 
language, which well presents this sul)ject : 

" This complex government was curiously contrived to give liberty and 
safety to the people of all the States. It Avas fashioned by the people, in 
the name of the people, and for the people. Its aim was to keep the 
peace among the States and to manage atfairs of common concern, while 
it left to the States the entire management of their own afliiirs. Its found- 
ers were wise and practical men. They knew what history had taught 
from the beginning of Greek civilization, that a number of small repub- 
lics would perish without federation, and that federation would destroy 
the small republics without such a barrier as it was impossible to pass. 



David Dudley Field. 



176 

Liberty and safety were the ends to be won by the don])le and oomiilex 
organization; liberty from the States, and safety from the Union, and 
the founders thought that they had contrived a scheme which would 
make the States and the Union essential parts of a great whole ; that 
they liad set bounds to each which they could not pass ; in short, that 
they had founded ' liberty and union, one and inseparable.' 

" No man in his senses could have supposed, at the formation of the 
Constitution, or can now suppose, that a consolidated government, ex- 
tending over so much territory and so many people, can last a generation 
without the destruction of the States and of republican government with 
them. History is a fable, and political philosophy a delusion, if any 
government other than monarchical can stretch itself over tifty degrees 
of longitude and half as many of latitude, with fifty millions of people, 
where there are no local governments capable of standing by themselves 
and resisting all attempts to imperil their self-existence or impair their 
authority. The moment it is conceded that Washington may, at its dis- 
cretion, regulate all the concerns of New York and California, of Louisi- 
ana and Maine; that the autonomy of the States has no defence stronger 
than the self-denial of fluctuating congressional majorities; at that mo- 
ment the republic of our flithers will have disappeared, and a republic 
in name, but a despotism in fact, will have taken its place, to give way 
in another generation to a government with another name, and other 
attributes." 

Ill his dissenting- opinion in the Pensacola Telegraph 
case Judge Field gave expression to similar views, as 
follows: 

" The late war was carried on at an enormous cost of life and property 
that the Union might be preserved ; but unless the independence of tlie 
States within their proper spheres be also preserved the Union is value- 
less. In our form of government the one is as essential as the other ; and 
a blow at one strikes both. The general government was formed for 
national purposes, j)rincipally that we might have within ourselves uni- 
formity of commercial regulations, a common currency, one postal system 
and that the citizens of the several States might have in each equality of 
right and privilege ; and that in our foreign relations we might present 
ourselves as one nation. Bat the protection and enforcement of private 
rights of both persons and property, and the regulation of domestic af- 
fairs, were left chiefly with the States, and unless they are allowed to re- 
main there it will be impossible for a country of such vast dimensions as 
ours, with every variety of soil and climate, creating different pursuits 
and conflicting interests in different sections, to be kept together in 
peace. As long as the general government confines itself to its great but 
limited sphere, and the States are left to control their domestic affairs 
and business, there can be no ground for public unrest and disturbance. 
Disquiet can only arise from the exercise of nngranted powers." — (96 
U. S., 23.) 



177 

Tlio fourtec'iitli aiuoiulnieut \ni< not diauged tliis con- 
trol of the Statos over matters of loeal concern. It only 
prohibits partial and discriminating legislation by them, 
requiring that all persons within their jnris(ncli()n shall 
receive the equal protection of the laws. It interferes with 
the previous powers of the States in no other respect. 

But by far the most exhaustive and elaborate consider- 
ation of the relations between the general government 
and that of the States, which has ever been liad in the 
Supreme Court, is found in the dissenting opinions of 
Judge Field in the recent jury cases from Virginia, and 
in the election cases from Ohio and Maryland. 

There were two jury cases ; one arising upon the in- 
dictment of a county judge for not selecting as jurors per- 
sons of the colored race; and the other upon the removal 
of prisoners from a State court to a federal court after 
their conviction because persons of that race were not 
selected as jurors in the State court. 

The first case arose as follows: 

In Virginia all male citizens between the ages of twenty- 
one and sixty, who are entitled to vote and hold office un- 
der tlie constitution and laws of the State, are lial)le, with 
certain exceptions, not material to be here mentioned, to 
serve as jurors. The judge of each county or corporation 
court is required to prepare annually a list of such inhab- 
itants of the county or corporation, not less than one hun- 
dred, nor exceeding three hundred in number, " as he 
shall think well qualified to serve as jurors, being persons 
of sound judgment and free from legal exception." The 
name of each person on the list thus prepared is to be 
written on a separate ballot and placed in a Ijox to be kept 
by the clerk of the court. From this box the names of 
persons to be summoned as grand and petit jur«)rs of the 
county are to be drawn. 

The law, in thus providing for the preparation of the 
list of persons from whom the jurors are to be taken, 
makes no discrimination against persons of the colored 
12 



178 

race. The judge of the county or corporation court is re- 
stricted in his action oidy by the condition that the per- 
sons selected sliall, in his opinion, be "well qualified to 
serve as jurors," be " of sound judgment," and " free from 
legal exception." A¥hether they possess these qualifica- 
tions, is left to his determination. 

In 1878 J. D. Coles was the judge of the County Court ■ 
of the County of Pittsylvania, in A^irginia, and had held 
that office for some years. It was not pretended that, in 
the discharge of his judicial duties, he had ever selected 
as jurors persons who w^ere not qualified to serve in that 
character, or who were not of sound judgment, or who 
were not free from legal exception. It was not even sug- 
gested in argument that he had not at all times faithfully 
obeyed the law of the State ; yet he was indicted in the 
District Court of tlie United States for the Western Dis- 
trict of Virginia for having, on some undesignated day in 
the year 1878, excluded and failed to select as grand and 
petit juroj's, citizens of the county, on account of race, 
color, and previous condition of servitude. The indict- 
ment did not state who those citizens were, or set forth 
any particulars of the oti'ence, but charged it in the gen- 
eral words of a definition. The district court, neverthe- 
less, issued a bench warrant, upon which the judge was 
arrested and, refusing to give bail, he was held in custody 
to answer the indictment. He thereupon presented to the 
Supreme Court of the United States a petition for a certi- 
orari to that court to send up .the record of its proceedings 
for examination, and for a writ of habeas corpus, alleging 
that its action was without jurisdiction, and that his im- 
prisomnent thereunder was unlawful, and praying to be 
released therefrom. 

The Commonwealth of Virginia also presented a simi- 
lar petition, declaring that she was injured by being de- 
prived of the services of her judicial officer, by his un- 
lawful arrest and imprisonment. 

The indictment was founded upon the fourth section of 



17I» 

tlij act of Congress of March 1st, 187'), ''to protccl all 
c-itizoiis in their civil and legal rights," which dcchuvs : 
'^ That no citizen possessing all other qualifications, which 
are or may be prescribed by law, shall be disqualified for 
service as grand or petit juror, in any court of the United 
States, or of any State, on account of race, coloi-, or pre- 
vious condition of servitude ; and any officer or other per- 
son charged with au}^ duty in llie selection or summoning 
of jurors, who shall exclude or fail to summon any citizen 
for the cause aforesaid, shall, on conviction thereof, be 
deemed guilty of a misdemeanor, and be fined not more 
than five thousand dollars." 

The case was elaborately and ably argued liydudge 
Robertson and the Attorney-General of Virginia for the 
})etitioner, Coles, and the Commonwealth ; and l)y the 
Attorney-General of the United States and Judge AYil- 
oughby in opposition. 

The court held the act of Congress constitutional, the 
indictment valid, and denied the petitions of Judge Coles 
and the Commonwealth of Virginia. A very elaborate 
opinion on sustaining their action was given by Judge 
Strong for the majority of the court. Judges (^liftbrd and 
Field dissented, Judge Field dehvering a dissenting opin- 
ion. In that opinion lie contended that the district court 
exceeded its jurisdiction in issuing its process for the arrest 
of Judge Coles, on two gi-ounds: 1st, because, assuming that 
the act of Congress of 1875 was constitutioiud and valid 
legislation, the indictment described no ofience uiuler it, 
but was void on its face; and 2nd, because that act, in the 
section upon which the indictment was founded, so far as 
it related to jurors in State courts, was unconstitutional 
and void. On the second ground Judge Field said as 
follows : 

" Previous to the late amendments it would not have been contended, 
by any one familiar with the Constitution, that Congress was vested with 
any power to exercise supervision over the conduct of State officers in 
the discharge of their duties under the laws of the State, and prescribe 
a punishment for disregarding its directions. It would have been con- 



180 

ceded that the selection of jurors was a subject exclusively for regulation 
by the States ; that it was for them to determine who should act as jurors 
in their courts, from what class they should be taken, and what qualifi- 
cations they should possess ; and that their officers in carrying out the 
laws in this respect were responsible only to them. The States could 
have abolished jury trials altogether, and required all controversies to be 
submitted to the courts without their intervention. The sixth and sev- 
enth amendments, in which jury trials are mentioned, apply only to the 
federal courts, as has been repeatedly adjudged. 

" The government created by the Constitution was not designed for the 
regulation of matters of purely local concern. The States required no 
aid from any external authority to manage their domestic affairs. They 
were fully competent to provide for the due administration of justice 
between their own citizens in their own courts, and they needed no di- 
rections in that matter from any other government, any more than they 
needed directions as to their highways and schools, their hospitals and 
charitable institutions, their public libraries, or the magistrates they 
should appoint for their towns and counties. It was only for matters 
which concerned all the States, and which could not be managed by them 
in their independent capacity, or managed only with great difficulty and 
embarrassment, that a general and common government was desired. 
Whilst they retained control of local matters, it was felt necessary that 
matters of general and common interest, Avhich they could not wisely 
and efficiently manage, should be entrusted to a central authority. And 
so to the common government, which grew out of this prevailing neces- 
sity, was granted exclusive jurisdiction over external affiiirs, including 
the great powers of declaring war, making peace, and concluding treaties ; 
but only such powers of internal regulation were conferred as were es- 
sential to the successful and efficient working of the government estab- 
lished ; to facilitate intercourse and commerce between the people of the 
different States, and secure to them equality of protection in the several 
States. 

" That the central government was created chiefly for matters of a 
general character, which concerned all the States and their people, and 
not for matters of interior regulation, is shown as much by the history of 
its formation, as by the express language of the Constitution. The Union 
preceded tlie Constitution. As happily expressed by the late Chief Jus- 
tice, ' it began among the Colonies and gi-ew out of common origin, mu- 
tual sympathies, kindred principles, similar interests, and geographical 
relations. It was confirmed and strengthened by the necessities of war, 
and received definite form and character and sanction from the Articles 
of Confederation.'— (Texas vs. White, 725. ) Those articles were prepared 
by the Continental Congress, which was called to provide measures for the 
common defence of the colonies against the encroachments of the British 
Crown, and which, foiling to secure redress, declared their independence. 
Its members foresaw that when the independence of the Colonies w;as 



181 

established and acknowleilgcd, their condition as separate and independ- 
ent States woiihl he beset with dangers throaleninu' their peaee and safety ; 
tliat disputes arisini;- tVoni o;inllietinu' interests and rivah-ies, always inci- 
dent to nei<>;hborin,n- nations, would lead to arni<>d collisions and expose 
them to re-conquest by tlie niolher country. To ])rovide against the 
jiossibility of evils of this kin<l, the .\rticles of (Confederation were pre- 
pared and sul)uiitted to the legislatures of the several States, and llnally 
in 1781 were adopted. They declared that the Htates entered into a firm 
league of friendship with each other for their coninum defence; the se- 
curity of their liberties and their mutual and general welfare; and they 
bound themselves to assist each other against attacks on account of relig- 
ion, sovereignty, trade, or any other ])reteuce. The^^ clothed the new 
government created l>y them with i)owers supposed to be ampleto secure 
these ends, aiul declared that there sliould be freedom of intercourse and 
commerce between the inhabitants of the several States. They provided 
for a general Congress, and, among other things, invested it with the ex- 
clusive liower of determining on peace and war, except in case of iava- 
sioa of a State by enemies or imminent danger of such invasion by In- 
dians; of sending and receiving ambassadors, entering into treaties and 
alliances ; of regulating the alloy and value of coin struck by the au- 
thority of the States or of the United States; of fixing the standard of 
weights and measures ; of regulating the trade and managing all affliirs 
with the Indians ; and of establishing and regulating post-offices from one 
State to another ; and they placed numerous restraints upon tlie States. 
But by none of the articles was any interference authorized with the 
purely internal affairs of the States, or with any of the instrumentalities 
by which the States administered their governments and dispensed .jus- 
tice among their people ; and they declared in terms that each State re- 
tained its sovereignty, freedom, and independence, and every power, ju- 
risdiction, and right which was not by the articles expressly delegated to 
the United States in Congress assembled. 

" When the government of the Confederation failed, chiefly through the 
want of all coercive authority, to carrv^ into effect its measures, its power 
being only that of recommendation to the States, and the present Con- 
stitution was adopted, the same general ends were sought to be attained, 
namely, the creation of a central government, which would take exclu- 
sive charge of all our foreign relations, representing the people of all the 
States in that respect as one nation, and would at the same time secure 
at home freedom of intercourse between the States, equality of protection 
to citizens of each State in the several States, uniformity of commercial 
regulations, a common currency, a standard of weights and measures, one 
postal system, and such other matters as concerned all the States and 
their people. 

" Accordingly, the new government was invested with powers adequate 
to the accomplishment of these purposes, with which it could act directly 
upon the people, and not by recommendation to the States, and enforce 



182 

its measures through tribunals and olticers of its own creation. There 
were also restraints placed upon the action of the States to prevent in- 
terference with the authority of the new government, and to secure to 
all persons protection against punishment by legislative decree, and eu- 
sure.the fulfillment of contract obligations. But the control of matters 
of purely local concern, not coming within the scope of the powers granted 
or the restraints mentioned, was left, where it had always existed, with 
the States. The new government being one of granted powers, its au- 
thority was limited by them and such as were necessarily implied for 
their execution. But lest from a misconception of their extent these 
powers might be abused, the tenth amendment was at an early day 
adopted, declaring that ' the powers not delegated to the United States 
by the Constitution, nor prohibited by it to the States, are reserved to 
the States respectively, or to the people.' 

" Now. if we look into the Constitution we shall not find a single word 
from its opening to its concluding line, nor in any of the amendments in 
force before the close of the civil Avar, nor, as I shall hereafter endeavor 
to show, in those subsequently adopted, which authorizes any interference 
by Congress with the States in the administration of their governments, 
and the enforcement of their laws with respect to any matter over which 
jurisdiction was not surrendered to the United States. The design of its 
framers was not to destroy the States, but to form a more perfect union 
between them, and whilst creating a central government for certain great 
purposes, to leave to the States in all matters, the jurisdiction of which 
was not surrendered, the functions essential to separate and independent 
eKistence. And so the late Chief Justice, speaking for the court in 1869, 
said: ' Not only, therefore, can there bs no loss of separate and independ- 
ent autonomy to the States, through their union und:^r tlie Constitution, 
but it may be not unreasonably said that the preservation of the States, 
and the maintenance of their governments, are as much within the de- 
sign and care of the Constitution as the preservation of the Union and 
the maintenance of the national government,' and then he adds, in that 
strikino- language which gives to an old truth new force and significance, 
that ' the Constitution, in .all its provisions, looks to an indestructible 
Union composed of indestructible States.'— (Texas vs.White, 7 Wall., 725.) 
" And Mr. Justice Nelson, also speaking for the court, in 1871, used 
this language : ' The general government, and the States, although both 
exist within the same territorial limits, are separate and distinct sov- 
ereignties, acting separately and independently of each other, within their 
respective spheres. The former in its appropriate sphere is supreme; but 
the States within the limits of their powers not granted, or, in the lan- 
guage of the tenth amendment, 'reserved,' are as independent of the gen- 
eral government as that government within its sphere is independent of 
the States.' And again : ' We have said that one of the reserved powers 
was that to establish a judicial department ; it would have been more ac- 
curate, and in accordance with the existing state of things at the time, to 



188 

liavo said llic i)o\vcr to iiiaiutaiu a JLulicial (lipartmciil. All ol' the 
thirteen Htates were in the possession of this power and had exercised it 
at the adopt ion of the Constitntiou ; and it is not pretended that any 
grant of it to tlic geni'ral government is I'onnd in that instrument. It is, 
therefore, one (jf tlii' sovereign powers vesu-d in tlie States by their con- 
stitutions, which remained unaltered and unimpaired, and in respect to 
which the State is as independent of the general government as that 
government is independent of the States.' — (The Collector vs. Day, 11 
Wall., 1-24-6.) 

"The cases of Texas vs. White, and Collector vs. Day, were decided 
after the thirteenth and fourteenth amendments, upon which it is sought 
to maintain the legislation in question, were adopted ; and wi^i their 
IKOvisions the Chief Justice and Mr. Justice Nelson, and the court for 
which they spoke, v.-ere familiar. Yet neitlier they, nor any other judge 
of the court, suggested that the doctrines announced in the opinions, 
from which I have quoted, were in any respect modi lied or affected l)y 
the amendments. 

"Nothing, in my judgment, could have a greater tendency to destroy 
the independence and autonomy of the States ; reduce them to a humili- 
ating and degrading dependencs upon the central government ; engender 
constant irritation ; and destroy that domestic tranquillity which it was 
one of the objects of the Constitution to insure, than the doctrine asserted 
in this case, that Congress can exercise coercive authority over judicial 
officers of the States in the discharge of their duties under State laws. 
It will be only another step in the the same direction towar.ds consolida- 
tion, when it assunres to exercise similar coercive authority over gov- 
ernors and legislators of the States. 

"The Constitution declares that a 'person charged in any State with 
treason, felony, or other crime, who shall flee from justice and be found 
in another State, shall, on demand of the executive authority of the 
State from which he ll;'d, be delivered up, to be removed to the State 
having jurisdiction of the crime.' And yet in the case of The Common- 
wealth of Kentucky vs. Dennison, where a fugitive from justice from 
Kentucky was demanded from the governor of Ohio, and on his refusal 
application was made to this court for a mandamus to compel him to 
perform his duty in this respect, it was held that there was no clause or 
provision in the Constitution which armed the government of the United 
States with authority to compel the executive of a State to xierform his 
duty, nor to inflict any punishment for his neglect or refusal. ' Indeed, 
such a power,' said Mr. Chief Justice Taney, speaking for the whole 
court, ' would place every State under the control and dominion of the 
general government even in the administration of its internal concerns 
and reserved rights.' — (24 How., 107.) And Mr. Justice Nelson, in the 
case of Collector vs. Day, where it was held that it was not competent 
for Congress to impose a tax upon the salary of a judicial officer of a 
State, said, that ' any government whose means employed in conducting 



184 

its operations are mafle subject to the control of another and distinct gov- 
ernment, can exist only at the mercy of that government.' I could add 
to these authorities, if anything more were required, that all the re- 
corded utterances of the statesmen who participated in framing the Con- 
stitution and urging its adoption, and of the publicists and jurists who 
have since studied its language and aided in the enforcement of its pro- 
visions, are inconsistent with the pretension advanced in this case by the 
counsel of the government. 

" The duties of the county judge in the selection of jurors were judi- 
cial in their nature. They involved the exercise of discretion and judg- 
ment. He was to determine who were qualified to serve in that charac- 
ter, am* for that purpose whether they possessed sound judgment and 
were free from legal exceptions. The law under which he acted had been 
in force for many years, and had been always considered by the judicial 
authorities of Virginia to be in conformity with its constitution, wliich 
inhibits the legislature from requiring of its judges any other than judi- 
cial duties. A test as to the character of an act is found in the power of 
a writ of mandamus to enforce its performance in a particular way. If 
the act be a judicial one, the writ can only require the judge to proceed 
in the discharge of his duty with reference to it ; the manner of per- 
formance cannot be dictated. Here the writ could not command the 
county judge to select as jurors any particular persons, black or white, 
but only to proceed and select such as are qualified, its command in that 
respect being subject to the limitation incident to all commands of such 
writs upon judicial officers toucliing judicial acts. 

" The thirteenth and fourteenth amendments are relied upon, as al- 
ready stated, to support the legislation in question. The thirteenth 
amendment declares 'That neither slavery nor involuntary servitude, 
except as a punishment for crime, whereof the party shall have been 
duly convicted, shall exist within the United States, or any place subject 
to their jurisdiction.' The fourteenth amendment, in its first section, 
which is the only one having any bearing upon the questions involved in 
this case, declares that 'All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens of the United 
States and of the State wherein they reside. No State shall make or 
enforce any law which shall abridge the privileges or immunities of cit- 
izens of the United States ; nor shall any State deprive any i^erson of 
life, liberty, or property without due process of law; nor denj' to any 
person within its jurisdiction the equal protection of the laws.' The fif- 
teenth amendment, which declares that 'the right of citizens of the 
United States to vote shall not be denied or abridged by the United 
States, or by any State, on account of race, color, or previous condition of 
servitude,' is not material to the question before us, except as showing 
that it was only with respect to the suffrage that an interdict was in 
terms placed against legislation on account of race, color, or previous 
condition of servitude. Equality in their civil rights was in other waj's 



1S5 

scoured to persons of the colored nice ; and tlie hnllol Ixiiiii assured to 
them, an elTeetual means against unjust lejiislal ion svas phieed in tlieir 
liands. To each of these amendments a clause is achled autliori/.in^ Con- 
gress to enforce its ])rovisions ]>y ' aii])rojiriate legishition.' 

•'The history of thi' amendments is fresh in tiie recollection of all of 
us. They grew out of the late civil war and the events which followed 
it. They were primarily designed to give freedom to persons of the Afri- 
can race, prevent their future enslavement, make them citizens, jjrevent 
discriminating State legislation against their rights as freemen, and se- 
cure to them the ballot. The generality of the language used neces.sa- 
rily extends some of their provisions to all iier.sons of every race and 
color; but in construing the amendments and giving effect to Iheni, the 
occasion of their adoption and the luirposes tln^y a\ ere designed to attain 
should be always borne in mind. Xor should it Ix^ forgot I en thai they 
are additions to the previous amendments, and are to Ik" construed in con- 
nection with them and the original Constitution as one in.strninent. 
They do not, in terms, contravene or repeal anything which previously 
existed in the Constitution and those amendments. Aside from the ex- 
tinction of slavery, and the declaration of eitizen.ship, their provisions are 
merely prohibitory upon the States; and there is nothing in their lan- 
guage or purpose which indicates that they are to be construed or en- 
forced in any way different from that adopted with reference to previous 
restraints upon the States. The provision authorizing Congress to enforce 
them by appropriate legislation does not enlarge their scope, nor confer 
any authority which would not have existed independently of it. No 
legislation would be appropriate which should contravene the express 
prohibitions upon Congress previously existing, as, for instance, that it 
should not pass a bill of attainder or an ex post facto law. Nor would 
legislation be appropriate which should conflict with the implied prohi- 
bitions upon Congress. They are as obligatory as the express prohibi- 
tions. The Constitution, as already stated, contemplates the existence 
and independence of the States in all their reserved powers. If the States 
were destroyed there could of course be no United States. In the lan- 
guage of this court, in Collector vs. Day, ' without them the general gov- 
ernment itself would disappear from the family of nations.' Legislation 
could not, therelbre, l)e appropriate which, under pretence oi' proliil)iting 
a State from doing certain things, should tend to destroy it, or any of its 
essential attributes. To every State, as understood in the American sense, 
there must be, with reference to the subjects over which it has jurisdic- 
tion, absolute freedom from all external interference in the exercise of its 
legislative, judicial, and executive authority. Congress could not under- 
take to prescribe the duties of a State legislature and the rules it sliould 
follow, and the motives by which it should be governed, and authorize 
criminal prosecutions against the members if its directions were disre- 
garded; for the independence of the legislature is essential to the inde- 
pendence and autonomy of the State. Congress could not lay down rules 



186 

for the guidance of the State judiciary, and prescrihe to it the hiw and 
the motives by which it should be controlled, and if these were disre- 
garded, direct criminal proceedings against its members ; because a. judi- 
ciary independent of external authority is essential to the independence 
of the State, and, also, I may add, to a just and efficient administration 
of justice in her courts. Congress could not dictate to the executive of 
a State the bills he might approve, the pardons and reprieves he might 
grant, or the manner in which he might discharge the functions of his 
office, and assume to punish him if its dictates were disregarded, because 
his independence, within the reserved powers, is essential to thut of the 
State. Indeed, the independence of a State consists in the independence 
of its legislative, executive, and judicial officers, through whom alone it 
acts. If this were not so, a State would cease to be a self-existing and an 
indestructible member of the Union, and would be brought to the level 
of a dependent municipal corporation, existing only with such powers as 
Congress might prescribe. 

"I cannot think I am mistaken in saying that a change so radical in 
the relation between the federal and State authorities, as would justify 
legislation interfering with the independent action of the different de- 
partments of the state governments, in all matters over which the States 
retain jurisdiction, was never contemplated by the recent amendments. 
The i^eople in adopting them did not suppose tliey were altering the 
fundamental theory of their dual system of governments. The discus- 
sions attending their consideration in Congress, and before the people, 
when presented to the legislatures of the States for adoption, can be suc- 
cessfully appealed to in support of this assertion. The Union was pre- 
served at a fearful cost of life and property. The institution of slavery 
in u portion of the country was the cause of constant irritation and 
crimination between the people of tli3 S.ates where it existed and those 
of the free States, which finally led to a rupture between them and to 
the civil war. As the war progressed its sacrifices and burdens filled the 
people of the loyal States with a determination, that not only should the 
Union be preserved, but that the institution, which, in their judgment, 
had threatened its dissolution, should be abolished. Th;^ emancipation 
proclamation of President Lincoln expressed this determination, though 
placed on the ground of military necessity. The thirteenth amend- 
ment carried it into the organic law. That amendment prohibits 
slavery and involuntary servitude, except for crime, within the United 
States, or any place subject to their jurisdiction. It, language is not re- 
stricted to the slavery of any particular class. It applies to all men ; and 
embraces in its comprehensive language not merely that form of slavery 
which consists in the denial of personal rights to the slave, and subjects 
him to the condition of a chattel, but also serfage, vassalage, peonage, 
villanage, and every other form of compulsory service for the benefit, 
pleasure, or caprice, of others. It was intended to render every one 
within the domain of the Eepublic a freeman, with the right to follow the 



187 

ordinary pursuits of life without other restraints tlian such asaroaiiplicd 
to all others, and to enjoy equally witli llicm the caruiugs of his lalior. 
]>ut it confers no political rights : it leaves the States free, as Ijefore its 
adoption, to determine wlio shall hohl tlieir oflices and i.artieii)ate in (lie 
ailniiiiisfration ol' their laws. A similar proliil)iti()ii ol' slavery and in- 
voluntary servitude was in the constitution of several Slates ]>revi(uis to 
its adoption by the United States: and it was never ludd to conf<a' any 
political rights. 

" On the eighteenth of December, 18(5.3, this amendment was ratilitd, 
that is, the olticial proclamation of its ratification was then made ; and 
in April of the following year the civil rights act was ])assed. Its lirst 
section declares that all persons burn in the I'liited Slates, and not sub- 
ject to any foreign power, excluding Indians not ta.\ed, are "citizens of 
the United States,' and that 'such citizens, of every race and color, with- 
out regard to any previous condition of slavery or involuntary servitude, 
except us a })unishment for crime, of which the party .shall have been 
duly convicted, shall have the same right in every State and territory in 
the United States, to make and enforce contracts, to sue, be parties and 
give evidence, to inherit, purchase, lease, .sell, hold, and convey real and 
personal property, and to full and ecjual benefit of all laws and iimeetd- 
ings for the security of person and property as is enjoyed by white \wr- 
sons.' This legislation was intended to secure to all persons in the United 
States practical freedom. But its validity was questioned in many quarters 
entitled to consideration, and some of its provisions not long afterwards 
were declared by State courts to be beyond the constitutional authority 
of Congress.^(Bawlin v.s. Commonwealth, 2 Bush, 5.) There were also 
complaints made that notwithstanding the amendment abalishing slav- 
ery and involuntary servitude, except for crime, the freed men were, by 
legislation in some of the Southern States, subjected to such burdensome 
disabilities in the acquisition and enjoyment of property, and the pursuit 
of happiness, as to render their freedom of little value. — (Slaughter-House 
Cases, 16 Wall., 70.) There were, besides, complaints of the existence, in 
those sections, of a feeling of dislike towards citizens of the North seek- 
ing residence there, and towards such of their own citizens as had ad- 
hered to the national government during the war, which could not fail 
to find expression in hostile and discriminating legislation. It is imma- 
terial whether these complaints were justified or not; they were believed 
by many persons to be well-founded. To remove the cause of them ; to 
obviate objections to the validity of legislation similar to that contained 
in the first section of the civil rights act ; to prevent the possibility of 
hostile and discriminating legislation in future by a State against any cit- 
izen of the United States, and the enforcement of any such legislation 
already had; and to secure to all per.sons within the jurisdiction of tjie 
States the equal protection of the laws, the first section of the fourteenth 
amendment was adopted. Its first clause declared who are citizens of 
the United States and of the States. It thus removed from discussion 



188 

the question, which liad previously been debated, and though decided, 
not settled, b3' the judgment in the Dred Scott case, whether descendants 
of persons brought to this country and sold as slaves were citizens within 
tlie meaning of the Constitution. It also recognized, if it did not create, 
a national citizenship, as contradistinguished from that of the States. 
But the privilege or the duty, whichever it may be called, of acting as a 
Juror in the courts of the country, is not an incident of citizenship. 
Women are citizens ; so are the aged above sixty, and children in their 
minority ; yet they are not allowed in Virginia to act as jurors. Though 
some of these are in all respects qualilicd for such service, no one will pre- 
tend that their exclusion b\' law from the jury list impairs their rights as 
citizens. 

" The second clanse of the first section of the amendment declares that 
'no State shall make or enforce any law which shall abridge the privi- 
leges or immunities of citizens of the United States.' In the Slaughter- 
House cases, it was held by a majority of the court that this clause liad 
reference only to privileges and immnnities of citizens of the United 
States, as distinguished from those of citizens of the States, and, there- 
fore, did not apply to those fundamental civil rights which belong to citi- 
zens of all free governments, such as the right to acquire and enjoy prop- 
erty and pursue happiness, subject only to such just restraints as might 
be prescribed for the general good. If this construction be correct there 
can be no pretence that the privilege or duty of acting as a juror in a 
State court is within the inhibition of the clause. Nor could it be within 
that inhibition if a broader construction were given to the clause, and it 
should be held, as contended by the minority of tlie court in the Slaugh- 
ter-House cases, that it prohibits the denial or abridgment by any State 
of those fundamental privileges and immunities which of right belong to 
citizens of all free governiuents ; and with which the Declaration of In- 
dependence proclaimed that all men were endowed by their Creator, and 
to secure which governments were instituted among men. These funda- 
mental rights were .secured, previous to the amendment, to citizens of 
each State in the other States, by Jhe second section of the fourth article 
of the Constitution, which declares that ' the citizens of each State shall 
be entitled to all privileges and immunities of citizens in the several 
States.' Among those privileges and immunities, it was never contended 
that jury duty or jury service was included. 

'■ The third clause in the first section of the amendment declares that 
no State ' shall deprive any person of life, liberty, or property without 
due process of law,' It will not be contended that this clause confers 
upon the citizen any right to serve as a juror in the State courts. It 
exi.sts in the constitutions of nearly all the States, and is only an addi- 
tional security against arbitrary deprivation of life and liberty, and arbi- 
trary spoliation of i^roperty. It means that neither can be taken, or the 
enjoyment thereof impaired, except in the course of the regular admin- 
istration of the law in the established tribunals. The existence of this 



ISO 

clause in tlio ainoiulinciil is fo inc a ixM-suasivc aruununl (hat thoso Avlio 
framed it. and the h'-ishitures of the Stales which a(h>i.te(l it. never eoii- 
templateil that the i)r()hihiti()!i was to l>e eiiloreed in any other way than 
throuiili the jiidieial t riliuiials, as previous pvohihit ions upon the >States 
ha<l always been enloreed. If Conj>;ress could, as an appropriate means 
to eutbrcc the proliibition, prescrilie criminal i)r()seeuti()ns ibr its infrac- 
tion against legislators, judges, and other officers of tlie States, it would 
be authorized to frame a vast portion of their laws, for there are few sub- 
jects upon which legislation can be had besides life, liberty, and property. 
In determining what constitutes a deprivation of property, it might pie- 
scribe the conditions upon wiiich property shall be aecinired and hehl ; 
and declare as to what sulvjeets proiierty rights .shall e.xist. In determin- 
ing what constitutes deprivation of liberty, it might prescribe in wliat 
way and by what means the liberty of the citizen shall be deemed i)ro- 
tected. In prescribing punishment for deprivation of life, it might pre- 
scribe a code of criminal procedure. All this and more might be done if 
it once be admitted, as the court asserts in this case, that Congress can 
authorize a criminal pi-o.secution for the infraction of the prohibitions. 
It cannot prescribe punishment without defining crime, and, therefore, 
must give expression to its own views as to what constitutes protection 
to life, liberty, and property. 

" The fourth clause in the first section of the amendment declares that 
no State shall 'deny to any person within its jurisdiction the equal pro- 
tection of the laws.' Upon this clause the counsel of the district judge 
chiefly rely to sustain the validity of the legislation in question. But 
the universality of the protection secured necessarily renders their posi- 
tion untenable. All persons within the jurisdiction of the State, whether 
permanent residents or temporary sojourners, whether old or young, 
male or female, are to be equally protected. Yet no one will contend 
that equal protection to women, to children, to the aged, to aliens, can 
only be secured by allowing i>er,sons of the class to which they belong to 
act as jurors in cases affecting their interests. The equality of protection 
intended does not requii-e that all persons shall be permitted to partici- 
pate in the government of the State and the administration of its laws, 
to hold its offices, or be clothed with any public trusts. As already said, 
the universality of the protection assured repels any such conclusion. 

"The equality of the protection secured extends only to civil rights as 
distinguished from those which are political, or arise from the ibrm of the 
government and its mode of administration. And yet the reach and 
influence of the amendment are immense. It opens the courts of the 
country to every one, on the same terms, for the security of his person and 
property, the prevention and redress of wrongs, and the enforcement of 
contracts; it assures to every one the same rules of evidence and modes 
of procedure ; it allows no impediments to the acquisition of property, 
and the pursuit of happiness, to which all are not subjected ; it suffers no 
other or greater burdens or charges to be laid upon one than such as are 



190 

eqnalh' borne by others; ami in the administration of criminal justice it 
permits no different or greater punishment to be imposed upon one than 
such as is prescribed to all for like offences. It secures to all persons their 
civil rights upon the same terms ; but it leaves political rights, or such as 
arise from the form of government and its administration, as they stood 
previous to its adoption. It has no more reference to them than it has to 
social rights and duties, which do not rest upon any positive law, though 
they are more potential in controlling the intercourse of individuals. In 
the consideration of questions growing out of these amendments much 
confusion has arisen from a failure to distinguish between the civil and 
the political rights of citizens. Civil rights are absolute and personal. 
Political rights on the other hand ai'e conditioned and dependent upon 
the discretion of the elective or appointing power, whether that be the 
people acting through the ballot, or one of the departments of their gov- 
ernment. The civil rights of the individual are never to be withheld, 
and may be always judicially enforced. The political rights which he 
may enjoy, such as holding office and discharging a public trust, are qual- 
ified because their possession depends on his fitness, to be adjudged by 
tliose whom society has clothed with the elective authority. The thir- 
teenth and fourteenth amendments were designed to secui'c the civil 
rights of all persons of every race, color, and condition, but tliey left to 
the States to determine to whom the possession of political power sliould 
be entrusted. This is manifest from the fact that when it was desired to 
confer political power upon the newly-made citizens of the States, as was 
done by inhibiting the denial to them of the suffrage on account of race, 
color, or previous condition of servitude, a new amendment was required. 

" Thedoctrine of the district judge, forwhich the counsel contend, would 
lead to some singular results. If, "when a colored person is accused of a 
criminal offence, the presence of persons of his race on the jury by which 
he is to be tried is essential to secure to him the equal protection of the 
laws, it would seem tliat the presence of such persons on the bench would 
be equally essential, if the court should consist of more than one judge, 
as in many cases it may ; and if it should consist of a single judge, that 
such protection would be impossible. A similar objection might he raised 
to the composition of any appellate court to which the case, after ver- 
dict, might be carried. 

" The position that in cases where the riglits of colored persons are con- 
cerned, justice will not be done to them unless they have a mixed jury, 
is founded upon the notion that in such cases white persons will not be 
fair and honest jurors. If this position be correct there ought not to be 
any white persons on the jury where the interests of colored porsons only 
are involved. Tliat jury would not be an honest or fair one, of which 
any of its members shouhl be governed in his judgment* by other consid- 
erations than tiie law and the evidence ; and that decision would hardly be 
considered just which should be reached by a sort of compromise, in 
which the prejudices of one race were set off against the prejudices of the 
other. To be consistent, those who hold this notion should contend that 



191 

in cases an'octinc moinl)ors of the colored race only tlie juries should I)C 
composed entirely of colored persons, and that the presiding jiidjie should 
he of the sume race. To this result the do(;trine asserted by the District 
Conrt loj-icallN- leads. The jury de medicUUc linf/tix, anciently allowed 
in England lor the trial of an alien, was expressly authorized by statute 
probably as much because of the diftercncc of language and customs V)e- 
tweeu him and Englisluuen. and the greater probability of his defence 
being more fully understood, as because it would be heard in a nion- 
friendly spirit by jnrors of his own country and language. 

" If these views as to the purport and meaning of the thirteenth and 
fourteenth amendments of the Constitution be correct, there is no warrant 
for the act of Congress under which the indictment in this (;ase was found, 
and the arrest and imprisonment of the petitioner were unlawful, and his 
release should be ordered. 

" The case is one which should not be delayed for the slow process of a 
trial in the court below, and a subsequent appeal, in case of convic- 
tion, to this court to be heard years hence. The Commonwealth of Vir- 
ginia lias represented to ns that the services of her judicial officer arc 
needed in her courts ibr the administration of justice between her citi- 
zens, and she asks that the highest tribunal of the Union will release him 
from his unlawful arrest, in order that he may perform the duties of his 
otfice. Those who regard the independence of the States in all their re- 
served powers— and this includes the indejiendence of their legislative, 
judicial, and executive departments— as essential to the successlnl mainte- 
nance of our form of government, cannot fail to view w ith the gravest 
apprehension for the future, the indictment, in a conit of the United 
States, of a judicial officer of a State for the manner in which he has dis- 
charged his duties under her laws, and of which she makes no complaint. 
The proceeding is a gross offence to the State : it is an attack upon her 
sovereignty in matters over which she has never surrendered her juris- 
diction. The doctrine which sust«ins it, carried to its logical results, would 
degrade and sink her to the level of a mere local municipal corporation ; 
for if Congress can render an officer of a State criminally liable for the 
manner in which he discharges his duties under her laws, it can prescribe 
the nature and extent of the penalty to which he shall be subjected on 
conviction ; it may imprison him for life or punish him by removal from 
office. And if it can make the exclusion of persons from jury service on 
account of race or color a criminal offence, it can make their exclusion 
from office on that account also criminal ; and, adopting the doctrine of 
the district judge in this case, the failure to appoint tl/bm to office will 
be presumptive evidence of their exclusion on that ground. To such a 
result are we logically led. The legislation of Congress is founded, and 
is sustained by this court, as it seems to me, upon a theory as to what 
constitutes the equal protection of the laws, which is purely speculative, 
not warranted by any experience of the country, and not in accordance 
with the understanding of the people as to the meaning of those terms 
since the organization of the government." 



192 

The decision of the court in this case attracted great 
attention throughout the country, for the views expressed 
seemed to indicate a wide departure from previous doc- 
trines, and to recognize in the general government a 
power over the States never before supposed to exist. 
All the principal journals contained comments upon it. 
The following extracts from a leading Republican paper 
of California express witli much force the sentiments of 
thoughtful men of all parties : 

"THE LAST STEP TOWARDS CENTRALIZATION. 



From the Record-Union of March 20th, 1880. 



"In the interpretation of the last judicial advance towards govern- 
mental ceutralizati(*a, the public judgment is warped by partisan preju- 
dice, and Republicans are led to believe that they have witnessed a fresh 
triumph for the principles of their party, when in reality they are un- 
wittingly consenting to the removal of all those checks to centralization 
which afford the strongest guarantees of popular liberty. The decision 
of the United States Supreme Court, in the matter of J. D. Coles and the 
Commonwealth of Virginia, petioners for the writ of habeas corpus, marks 
a decided forward step in that modern policy of governmental metamor- 
phosis which is gradually withdrawing from and denying to the States 
those elements of independent sovereignty and local self-government 
never surrendered by them to the federal government. So insidiously is 
this transformation proceeding, that it promises to have ext&nded beyond 
the possibility of clieck or retracement before the nation has clea'rly 
realized what it is that is being done. Twenty years ago the perception 
of the reserved riglits of the States was so much keener than now tliat 
such a decision as this would certainly have created a profound sensation, 
and as certainly have provoked the most energetic and earnest censure, 
whereas to-day it passes with no more notice than consists in the cus- 
tomary indorsement held indispensable by every party serf when a doc- 
trine supposed to be partisan in its character is promulgated. In fact 
the concernment here is not partisan, but national. Because the Com- 
monwealth of Virginia is a party to the proceeding, and the political 
rights of negroes are in question, it has been hastily concluded that the 
whole matter w* one of reconstruction, and that inasmuch as the court 
had ruled against the State, another defeat for the ' Secessionists ' was to 
be scored. It is necessary to point out that, though in truth reconstruc- 
tion is here dealt with, it is not alone the technical reconstruction of the 
Southern States, but the absolute reconstruction of the Union between 
the States that is now in course of being arranged. 

" It is neither necessary nor desirable to import any political bias into 
the consideration of this subject. It transcends all party issues, for it in- 



volvcs the qiifstiou ol' Uic liUiia- of tlie whole K'epiihlie. It is liere de- 
liberatelj^ set forth by the highest judicial authority that the constitu- 
tional amendments give the federal government powers over the States 
which are incompatible with the maintenance of any independenct; what- 
ever, and which not only facilitate but hasten the transformation of the 
government from a federation of sovereign States to a centralized demo- 
cratic absolutism. The doctrine now asserted goes the length of subor- 
dinating all State authority to federal authority ; for it involves the right 
of the latter to traverse all State legislation, to set aside the rules made 
by State legislatures for the government of the State Judiciary, to puiiish 
State officials for obeying State laws, and in a word, to reduce all tlie 
States to the level of mere municipalities, existing only at the will and 
caprice of Congress. The tendency in this direction lias, as we have oiteu 

pointed out, increased continually since the close of the war. All 

liistory shows that the diffusion of institutional self-government to the 
greatest possible extent is necessary to the securing of the largest meas- 
ure of freedom and the mo.st just and least burdensome government. 
This diffusion the American States enjoyed originally, and it is this which 

is threatened. The danger lies not alone in the strongly marked 

centralizing policy of the Supreme Court, but in the formidable support 

which the corrupt condition of politics gives to this movement. The 

greater a country becomes, the denser its population, the more complex 
its interests, the more necessary is it that the people everywhere should 
keep the levers of self-government in their own hands. For the removal 
ot authority to a distance always involves the weakening of responsibility 
and the encouragement of corruption." 

The second jiiiT ca>e from Viri>-lin:i ai'ose in tliis wise: 
Two colored persons in Virginia wei-e indicted in a county 
court in that State for the crime of murder. The person 
aUeged to ])avc 1:)een murdered was a white man. On heiiio- 
arraigned they pk^adcd not guiUy, and on their demand 
their trial was removed to the circuit court of the county. 
They there moved that the panel of jurors summoned, 
which was composed entirely of wdute persons, should he 
so moditied as to allow one-third of the numher to he per- 
sons of the colored race. 

This motion was denied, as it satisfactorily appeared that 
the jurors had been drawn from the jury-box according to 
law. The prisoners then presented a petition for the re- 
moval of the case to the United States Circuit C'ourt, alleg- 
ing, in suhstance. that the rights .secured by the law pro- 
viding for the equal civil riglits of all citizens of the 
13 



194 

United States were denied to them, inasmuch as their ap- 
phcation for a inixed jniy had heen refused. It also al- 
leged that a strong prejudice existed in the community 
against them on the ground of their color, the person al- 
leged to have been murdered being a white man. Their 
petition was denied and the prisoners were separately tried 
and convicted of murder. Both ol)tained new trials, one 
by motion to the court, and one on appeal to the Court of 
Appeals. When they were brought up for a second trial 
they again moved to have the prosecution removed to the 
Circuit Court of the United States. This was also denied. 
They were then tried separately. In one case the jury dis- 
agreed and the prisoner was removed to jail to await another 
trial. In the other case the prisoner was convicted and he 
was sentenced to imprisonment in penitentiary. 

Whilst the prisoners were in jail, one w^aiting for a new 
trial and the other until he could be removed under his 
sentence to the penitentiary, they procured a copy of the 
record of proceedings against them and presented it to the 
Circuit Court of the United States for the Western Dis- 
trict of Virginia, then held by Alexander Hives, the dis- 
trict judge, with the petition for removal presented to the 
State court, and prayed that the prosecution might be there 
docketed and proceeded with. The circuit court granted 
the petition, directed the cases to be placed on the docket 
and authorized the clerk to issue a writ of habeas corpus to 
the marshal of the district to take the prisoners into his cus- 
tody, and to summon for their trial twenty-iive jurors to 
attend at the next term. A writ of hahe/is corpas was ac- 
cordingly issued, and pursuant to its command the prison- 
ers were taken into the custody of the marshal. There- 
upon the Commonwealth of Virginia presented a petition 
to the Supreme Court of the United States praying for a 
mandamus to be directed to the district judge, command- 
ing him to order tlie marshal to re-deliver the prisoners 
to her authorities, upon the ground that the judge in his 
proceedings had transcended the jurisdiction of his court, 



195 

and exercised powers not vested in liini. An order was 
aceordingh^ issued to the judi>-e to sliow caust' wliy ilic 
writ should not issue. In his return he a(hnitted tlie laets 
stated, and Justitied his action on the ^-rouinl that the re- 
tusal of the State court to set aside the panel of jurors, and 
to give the prisoners a jurv composed in part of tlieir own 
race, was a denial to them of the e([ual pnttection ol' the 
laws, and brotight their eases within the proxision of the 
act of Congress authoi-izing a removal of criminal prose- 
cutions to the federal courts. The attorney -general of Vir- 
ginia, contending that the return was insuiiicient, moved 
that the writ might be issued as pi'aved. 

The application was argued by the same counsel who 
argued the iirst jury case. The court granted the writ 
and ordered that the prisoners should be returned to the 
State court, but it placed its decision on the ground that 
the act of Congress, providing for the removal of criminal 
prosecutions from State to federal courts, was only intended 
for cases where the application was made l)efore a trial or 
final hearing had commenced, and that the denial of 
rights for which a removal was autliorized was such 
as resulted from the constitution or hnvs of the State 
and not such as might l)e manifested at the trial or hear- 
ing ; but it left open the question whether Congress could 
not authorize a transfer of a case to the federal courts 
at any stage of its proceedings wdienever a ruling is 
made denying to the defendant the equal protection 
of the laws. Judges Field and Clitibrd concurred in the 
judgment of the court that the prisoners should be I'e- 
turned to the othcers of Virginia from whose cttstody tliej' 
were taken ; that the prosecution against them should he re- 
numded to the State court from which it was removed, and 
that a mandamus to the district jtidge was an appropriate 
remedy to etiect those ends, but as tliey did not agree with 
all the views expressed in the opinion of the court, and 
there were other reasons equally cogent with those given 
for the decision rendered, Judge Field thonght propei- to 



196 

i>tate, in a separate opinion, the gronncls of their concur- 
rence. After discussing at length the right of the court 
to issue a mandamus in the case, and referring to tlie act 
of Congress, he said as follows : 

"By this enactment it appears that in order to obtain a removal of a 
prosecution from a State to a federal court — except where it is against a 
public officer or other person for certain trespasses or conduct not mate- 
rial to consider in this connection — the petition of the accused must 
show a denial of, or an inability to enforce in the tribunals of the State, 
or of that part of the State where the prosecution is pending, some right 
secured to him by the law providing for the equal rights of citizens or 
jiersons within the jurisdiction of the United States. But how must the 
denial of a right under such a law, or the accused's inability to enforce 
it in the judicial tribunals of the State, be made to appear? So far as 
the accused is concerned, the law requires him to state and verify the 
facts, and from them the court will determine whether such denial or 
inability exists. His naked averment of such denial or inability can 
hardly be deemed sufficient; if it were so, few prosecutions would be 
retained in a State court for insufficient allegations when the accused 
imagined he would gain by the removal. — (Texas vs. Gaines, 2 Woods, 
844.) There must be such a presentation of facts as to lead the court to 
the conclusion that the averments of the accused are well founded. 
There are many ways in which a person may be denied his rights, or be 
iiuable to enforce them in the tribunals of a State. The denial or ina- 
bility may arise from direct legislation, depriving him of their enjoy- 
ment or the means of their enforcement, or discriminating against him or 
the class, sect, or race to which he belongs. And it may arise from popular 
prejudices, passions, or excitement, biasing the minds of jurors and 
judges. Religious animosities, political controversies, antagonisms of 
race, and a multitude of other causes will always operate, in a greater or 
less degree, as impediments to the full enjoyment and enforcement of civil 
rights. We cannot think that the act of Congress €ontemplated a denial 
of, or an inability to enforce one's rights from these latter and similar 
causes, and intended to authorize a removal of a prosecution by reasofi 
of them from a State to a federal court. Some of these causes have al- 
ways existed in some localities in every State, and the remedy for them 
has been found in a change of the place of trial to other localities where 
like impediments to impartial action of the tribunals did not exist. The 
civil rights act, to which reference is made in the section in question, 
was only intended to secure to the colored race the same rights and priv- 
ileges as are enjoyed by white persons ; it was not designed to relieve them 
from those obstacles in the enjoyment of their rights to which all other per- 
sons are subject, and which grow out of popular prejudices and passions. 

"The denial of rights or the inability to enforce them, to which the 
section refers, is, in n\y opinion, such as arises from legislative action of 



19 



Iho State, as, for oxaniple, an act oxcliidiiii;' colored i)er.soi)s from being 
witnesses, inakin;>; contracts, a','([uirin<i- i)ropc'rty, and tlie lilce. Witli re- 
spect to obstacles to tiie enjoyniL^nt of riiilits arisin<i from otber causes, 
persons of the colored race must take their cliances of removing or pro- 
viding against them with the rest of tlic cDmmunity. 

•• Tills cnnclusion is strengthened by the provisions of the 1 Itli amend- 
ment to tl'.e Constitution. The original civil rights act was passed, it is 
tnie, before the adoption of that amendment, but great donl)t Avas cx- 
jiressed as to its validity, and to obtain authority for similar legislation, 
and thus obviate the ol)jections which had been raised to its first section, 
was one of the objects of the amendment. After its adoption the civil 
rights act was re-enacted, and upon the first section of that amendment 
it rests. That section is directed against the State. Its language is that 
' no Slate shall make or enforce any law which shall abridge the privileges 
or immunities of citizens of the United States ; nor shall any State deprive 
any person of life, liherty, or property witliont due process of law, nor 
deny to any person within its jurisdiction tlie equal prt>tection of the 
laws.' As the State, in the administration of its government, acts through 
its executive, legislative, and judicial departments, the inhibition applies 
to them. But the executive and judicial departments only construe and 
enforce thelawsof the State ; the inhibition, therefore, is in effect against 
passing and enforcing any laws which are designed to accomplish the ends 
forbidden. If an executive or judicial officer exeix'ises power with which 
he is not invested l)y law, and does unauthorized acts, the State is not 
responsible for them. Tlie action of tlie judicial officer in such a case, 
where the rights of a citizen under the laws of the United States'are dis- 
regarded, may be reviewed and corrected or reversed by this court; it 
cannot be imputed to the State, so as to make it evidence that she in her 
so\ ereign or legislative capacity denies the rights invaded or refuses to 
allow their enforcement. It is merely the ordinary case of an erro- 
neous ruling of an inferior tribunal. Nor can the unauthorized action 
of an executive officer, impinging upon the rights of the citizen, be taken 
as evidence of her intention or policy so as to charge upon her a denial of 
such rights. 

" If these views are correct, no cause is shown in the petition of the 
prisoners that justified a removal of the prosecutions against them to the 
federal court. No law of Virginia makes any discrimination against per- 
sons of the colored race, or excludes them from the jury. The law re- 
specting jurors provides that ' all male citizens, twenty-one years of age 
and not over sixty, who are entitled to vote and hold office under the con- 
stitution and laws of the State,' with certain exemptions not material to 
the question presented, may be jurors ; and it authorizes an annual selec- 
tion in each county, by the county judge, from the citizens at large, of 
from one to three hundred persons, whose names are to be placed in a 
box, and from them the jurors, grand and jjetit, of the county are to be 
drawn. There is no restriction placed upon the county judge in selecting 



198 

them, except that they shall be such as he shall think ' well qualified to 
serve as jurors, being persons of sound judgment and free from legal ex- 
ception.' The mode thus provided, properly carried out, cannot fail to 
secure competent .jurors. Cei'tain it is that no rights of the prisoners are 
denied by this legislation. The application to the State court, upon the 
refusal of which the peti.ion was presented, was for a venire composed of 
one-third of their race, a proceeding wholly inadmissible in any jury sys- 
tem which obtains in the several States. 

" From the return of the district judge it would seem that in his judg- 
ment the presence of persons of the colored race ou the jury is essential 
to secure to them ' the equal protection of the laws ;' but how this con- 
clusion is reached is not apparent, except upon the general theory that 
such protection can only be aftbrded to parties when persons of the class 
to whicli they belong are allowed to sit on their juries. The correctness 
of this theory is contradicted by every day's experience. Women are 
not allowed to sit on juries ; are they thereby denied the equal protection 
of the laws ? -Foreigners resident in the country are not permitted to 
act as jurors, yet they are protected in their rights equally with citizens. 
Persons over sixty years of age in Virginia are disqualified as jurors, yet 
no one will pretend that they do not enjoy the equal protection of the 
laws. If when a colored person is indicted for a criminal offence it is es- 
sential, to secure to him the equal protection of the laws, that persons of 
his race should be on the jury by which he is tried, it would seem that 
the presence of such persons on the bench should be equally essential, 
where the court consists of more than one judge ; and that if it should 
consist of only a single judge, such protection would be impossible. To 
such an absurd result does the doctrine lead, which the circuit court an- 
nounced as controlling its action. 

" The equality of protection assured by the fourteentli amendment to 
all persons in the State does not imply that they shall be allowed to par- 
ticipate in the administration of its laws, or to hold any of its offices, or 
to discharge any duties of a public trust. The nniversality of the pro- 
tection intended excludes any such inference. Were this not so, aliens 
resident in the country, or temporarily here, of whom there are many 
thousands in each State, would be without that equal protection which 
the amendment declares that no State shall deny to any person within 
its jurisdiction. 

" It follows from these views as to the meaning and purpose of the act 
of Congress that the removal of the prosecution in this case from the 
State to the federal court is unauthorized by it ; and that the order of 
the circuit court to the marshal to take the prisoners from the custody 
of the State authorities is illegal and void. 

" The second objection of the Commonwealth to the legality of the re- 
moval is equally conclusive. The prosecution is for the crime of mur- 
der, committed within her limits by persons and at a place subject to her 
jurisdiction. The offence charged is against her authority and laws, and 



1!>9 

slie alone has tlic rijiht to iiuiuire into its coiuinissioii. ami to puiii.sli tlie 
ot^ender. IMiinlcr is not an ofi'ence against the United States, except 
when committed on an American vessel on the higli seas, or in some port 
or liavtn without the jurisdiction of the State, or in the District of Co- 
lumbia, or in the Territories, or at other places where the national gov- 
ernment has exclusive jurisdiction. The offence within the limits of a 
State, except where jurisdiction has been ceded to the I'nited States, is 
as much beyoud the jurisdiction of their courts as though it had been 
committed on another continent. The prosecution of the olVence in suclj 
a case does not, therefoi'c, arise under the Constitution and laws of the 
United States; and the act of Congress which attempts to give the fed- 
eral courts jurisdiction of it is, to my mind, a clear infraction of the Con- 
stitution. That instrument defines and limits the judicial power of the 
United States. 

" It declares, among other things, that the judicial power shall extend 
to cases in law and equity arising under the Constitution, laws, and trea- 
ties of the United States, and to various controversies to which a State is 
a party ; but it does not include in its enumeration controversies between 
a State and its own citizens. There can be no groiind, therefore, for the- 
assumption by a federal court of jurisdiction of offences against the laws 
of a State. The judicial power granted by the Constitution does not 
cover any such case or controver.sy. And whilst it is well .settled that 
the exercise of the power granted maj* be extended to new cases as they 
arise under the Constitution and laws, the power itself cannot be enlarged 
by Congress. The Constitution creating a government of limited powers 
puts a bound upon those which are judicial as well as those which are 
legislative, which cannot be lawfully passed. 

" This view would seem to be conclusive against the validity of the 
attempted removal of the prosecution in this case from the State court. 
The federal court could not in the iirst instance have taken jurisdiction 
of the offence charged, aud summoned a grand jury to present an indict- 
ment against the accused ; and if it could not have taken jurisdiction at 
iirst. it cannot do so upon a removal pf the i^rosecution to it. The juris- 
diction exercised upon the removal is original and not appellate, as is 
sometimes erroneously asserted, for, as stated hy Chief Justice Mar-shall 
in Marburg- vs. Madison, already, cited, it is of the essence of appellate 
jurisdiction that it revises and corrects proceedings already had. The 
removal is only an indirect mode by which the federal court acc[uires 
original jurisdiction. — (Railroad Co. vs. Whitton, 13 Wall., 287.) 

'' The Constitution, it is to be observed, in the flistribution of the judi- 
cial power, declares that in the cases enumerated in which a State is a 
party, the Supreme Court shall have original jurisdiction. Its framers 
seemed to have entertained great respect for the dignity of a State, v,iiich 
was to remain sovereign at least in its reserved powers, notwithstanding 
the new government, and theretbre provided that when a State should 
have occasion to seek the aid of the judicial power of the new govern- 



200 

ment, or should be brought under its subjection, that power shoukl be 
invoked only in its highest tribunal. It is difficult to believe that the 
wise men who sat in the convention which framed the Constitution and 
advocated its adoption, ever contemplated the possibility of a State being 
required to assert its authority over offenders against its laws in other 
tri])uiKils than those of its own creation, and least of all in an inferior 
tribunal of the new government. I do not think I am going too far in 
asserting that had it been supposed a power so dangerous to the inde- 
pendence of the States, and so calculated to humiliate and degrade them, 
lurked in any of the provisions of the Constitution, that instrument 
would never have been adopted. 

''There are many other difficulties in maintaining the position of 
the circuit court, which the counsel of the accused and the Attorney- 
(ieneral have earnestly defended. If a criminal prosecution of an offen- 
der against the laws of a State can be transferred to a federal court, what 
ofiScer is to prosecute the case ? Is the attorney of the Commonwealth 
to follow the case from his county, or will the United States district 
attorney take charge of it ? Who is to summon the witnesses and pro- 
vide for their fees ? In whose name is judgment to be pronounced ? If the 
accused is convicted and ordered to be imprisoned, who is to enforce the 
sentence? If he is deemed worthy of executive clemency, who is to 
exercise it— the governor of the State, or the President of the United 
States? Can the President pardon for an offence against the State? 
Can tlie governor release from the judgment of a federal court? These 
and other (piestions which might be asked show, as justly observed by 
the counsel of Virginia, the incongruity and absurdity of the attempted 
proceeding. 

" Undoubtedly, if in the progress of a criminal prosecution as Avell as 
in the progress of a civil action, a question arise as to any matter under 
the Constitution and laws of the United States, upon which the defend- 
ant may claim protection, or any benefit in the case, the decision thereon 
may be reviewed by the federal judiciary, which can examine the case so 
far and so far ouly as to determine the correctness of the ruling. If the 
decision be erroneous in that respect it may be reversed and a new trial had. 
Provision for such revision was made in the 25th section of the judiciary 
act of 1789 and is retained in the Revised Statutes. That great act was 
penned by Oliver Ellsworth, a member of the convention which framed 
the Constitution, and one of the early chief justices of this court. It 
may be said to reflect the views of the founders of the Kepublic as to the 
proper relations between*the federal and State courts. It gives to the fed- 
eral courts the ultimate decision of federal questions without infringing 
upon the dignity and independence of the State courts. By it harmony 
between them is secured, the rights of both federal and State governments 
maintained, and every privilege and immunity which the accused could 
assert under either can be enforced." 



201 

The Ehufion O/.^r,^' from Oliio and Mari/hniil : Ex-parf,' 

Clarke, 'rial E.r-p'irte Siehold. 
Tin' Coiistitntion declares that 'Mlie tiiiios, pUu-os, and 
iiiamicro!" holding elections for senators and rcprc-sfiita- 
tives shall be prescribed in earh Slate by the legislature 
thereof; but the Congress may, at any time, by law, make 
or alter such regulations, exeept as to the jilaccsoi' cdioosing 
senators." Congress is tlius authorized to make sueh reg- 
ulations itself or to alter those prescribed by tlie States, 
the making or alteration end)ra('ing every pai-ticular of 
time, place, and manner except the place of idioosing sen- 
ators. The regulations, however, can only extend to the 
designation of the mode in which the will of the voter 
shall he expressed and ascertained. The power is not 
lodged in Congress to prescribe the qualifications of voters; 
that matter is left to the States, subject to the provision 
that the electors of representatives in Congress must have 
the qualifications required of electors of the most numer- 
ous branch of the State legislature, and the provision of 
the fifteenth amendment relating to the sufirage of tlie 
colored race. Whatever is involved in the nvinncr of 
holdhi'i Congress can prescribe, and it is possible that so 
far as the election of representatives is concerned this may 
embrace all necessary provisions for ascertaining the names 
of the voters — thus sanctioning a registry law- — and the ap- 
pointment of officers of election to collect the votes and 
announce the result. So far as the election of senators is 
concerned, whatever regulations are prescribed, they must 
be such as a legislative Itody can conform to without im- 
pairment of its independent functions. 

The constitutional provision was adopted in order that 
the general government might have the means of its own 
preservation against a possible dissolution from the re- 
fusal or neglect of the States to provide for the election of 
representatives. To obtain this end in case of hostile 
action of the States, Congress must be able to authorize 
all necessary measures to ensure the holding of an election. 



202 

Xo one disputes this doctrine. The dispute bet\Yeen 
-the two great [larties of the country u^ion the election 
laws of Congress has not arisen from any exercise of the 
powers conferred by the clause of the Constitution in 
question, for no regulations have been adopted by Con- 
gress as to the holding of the elections, except as to the 
times of electing representatives and senators, and in case 
of senators by requiring the separate and joint action of 
the two houses of of the State legislatures. These regula- 
tions require no interference in their execution with the 
officers of the State. The dispute has arisen from the 
attempt of Congress to enforce the regulations prescribed 
by the State and to exercise a supervision over its officers, 
interfering with their action, and endeavoring to arrest 
and punish them for alleged violations of State laws. 

Previous to the election laws of Congress it was sup- 
posed to be a well-established doctrine that State officers 
were responsible only to the State for the manner in which 
they discharged their duties under State laws ; tliat when- 
ever the federal government desired to enforce by coer- 
cive measures and punitive sanctions the performance of 
a dut}^ wdiich it could prescribe, it was bound to appoint 
its own officers, upon whom its power could be exerted; 
and that if it entrusted the performance of such duty to 
officers of a State, it was obliged to take their agency on 
the terms which the State permitted. In other words, 
although Congress could l)y law presciibe I'cgulations for 
the election of representatives, and appoint its own oliicers 
for their execution, if it entrusted their execution to State 
officers it must take their agency upon the conditions 
which the State might exact. If on the other hand regu- 
lations were prescribed by the State, it was for the officers 
of the State to enforce them, and not the officers of the 
United States. 

Again, regulations for the election of State officers can 
only be prescribed by the State, and anj^ regulations by 
Congress for the election at the same time of representa- 



203 

tivos in ConiiToss must lie so iVaniofl as not to interfere 
with the Tree elerlion of State oifu-crs utKh'r tlie State 
hiws. Complaint has been made that hy the hiws of 
C\)nii-ress that freedom of election was invaded. 

This subject came up for consideration before the Su- 
preme Court of the United States at the October term, 
1870, At an election held in the First Congressional Dis- 
trict of Oliiojin October, 1878, at which a rei)resentative in 
Congress was voted for, one Clarke was appointed under the 
laws of the State, and acted as a judge of election at a pre- 
cinct in one of the wards of Cincinnati. At an election held 
in the Fourth and Fifth Congressional Districts of Mary- 
land, in November, 1878, at which a like representative 
was voted for, one Siebold and four others were appointed 
under the laws of the State and acted as judges of election 
at diti'erent precincts in the city of Baltimore. For al- 
leged misconduct as such otficers of election these }iarties 
were indicted in the Circuit Court of the United States for 
their respective districts, tried, convieted, and sentenced 
to imprisonment for twelve months, and in some of the 
cases also to pay a tine. Clarke was charged in the in- 
dictment with having violated a law of the State of Ohio. 
The parties from Maryland were charged with having pre- 
vented federal officers from interfering with them and su- 
pervising their action in the execution of the laws of that 
State. All of them petitioned the Supreme Court for 
writs of hdhciis rorpi'^', praying that they might be released, 
on the alleged ground that their imprisonment was unlaw- 
ful, in that the acts of Congress under whii-h they were 
prosecuted were unconstitutional and void. 

The cases were elaborately argued by George Iloadly, 
of Cincinnati, for the petitioner from Ohio ; by Bradley 
Johnson, of Baltimore, for the petitioners from Maryland, 
and by the Attorney-General of the United States on the 
other side. 

The Supreme Court held that the acts of Congress were 
valid, and that the parties were rightly indicted and con- 



204 

victed. They, tliei'efore, refused the wi-its. Judii'es CHfi:V)rd 
and Field dissented from the jiidgnuMit, JudiiX" Field rend- 
ing a dissenting opinion. In it he eoufined himself prin- 
cipally to the case of the petitioner from Ohio, as the 
principle which governed that case dis[)0sed of all of them; 
for, as he said, if Congress could not punish an officer of 
a State for the manner in which he discharged his duties 
under her laws, it could not subject him to the supervision 
and control of others in the [lei'formance of such duties, 
and punish him for resisting their interference. In the 
cases from Maryland, it appeared that the laws ot the State 
under which the petitioners were appointed judges of elec- 
tion, and the registration of voters for the election of 1878 
was made, were not in existence when the act of Congress 
was passed providing for the appointment of supervisors 
to examine the registration and scrutinize the lists, and of 
special deputy mai'shals to aid and protect them. The act 
of Congress was [)assed in 1871, and re-puhlislied in the 
Revised Statutes, which are declarator}' of the law in force, 
December 1st, 1873. The law of Maryland, under which 
the registration of voters was had, was enacted in 1874, 
and the law under which the judges of election were ap- 
pointed was enacted in 187(:), and these judges were required 
to possess ditterent qualitications from those required of 
judges of election in 1871 and 187->. 

The act of Congress upon which the indictment of the 
petitioner of Ohio was founded is contained in section 
5,515 of the Revised Statutes, which declares that " every 
officer of an election, at which any representative or del- 
egate in Congress is voted for, whether such officer of 
election be appointed or created by or under any law^ or 
authority of the United States, or by or under any State, 
territorial, district, or municipal law or authority, who ne- 
glects or i-efuses to perform any duty in regard to such 
election required of him by any law^ of the United States, 
or of any State or Territory thereof ; or who violates any 
duty so imposed; or who knowingly does any acts thereby 



20;> 

nnantli(H'i/iMl, willi iiitciu to afi't-ct any siidi t'lrctioii orllic 
rosult iluTc'oi', . . . sluill 1h' punislu'd as pi-cKcriLcMr' 
in a [iri'xioiis siH-tioii, that is, liy a I'nu- not exceeding one 
tliousaiul dollars, or in4»risonnient not more than one year, 
or hy hoth. 

The provisit):is of the aet of Congress relating to the 
appointment o! su[»ei'viso]-8 of election, ioi- resisting and 
interfering with whom the petitioners from Maryland were 
convicted, authorized the supervisors to supervise tlie ac- 
tion of the State officers fi'oni the registration of voters 
down to tlie close of the polls on the day of election; re- 
quired the marshals to aid and protect them; ])rovided for 
the appointment of special deputy marshals in towns and 
cities of over twenty thousand inhahitants; and invested 
them witli a power to arrest and take into custody persons 
without process, more extended than has ever before been 
entrusted to any one in this country in time of peace. 

In his dissenting opinion Judge Field, speaking for him- 
self and associate, said as follows: 

" In wl);it I have to say I shall endeavor to show; 1st, that it is not 
competent for Congress to punish a State officer for the manner in Avhich 
he discharges duties imposed upon him by the laws of the State, or to 
subject him in the performance of such duties to the supervision and 
control of others, and punish him for resisting their interference : and, 
2d, that it is not competent for Congress to make the exercise of its puni- 
tive power dependent ui)on the legislation of the States. 

"There is no doubt that Congress may adopt a law of a State, but in 
that case the adopted law must be entbrced as a law of the United States. 
Here there is no pretence of such adoption. In the case from Ohio it is 
for the violation of a State law, not a law of the United States, that the 
indictment was found, The judicial power of the United States does not 
extend to a case of that kind. The Constitution defines and limits that 
power. It declares that it shall extend to cases in law and equity arising 
under the Constitution, the laws of the United States, and treaties made 
under their authority ; to cases affecting ambassadors, other public min- 
isters and consuls; to cases of admiralty and maritime jurisdiction, and 
to various controversies to which t^he United States or a State is a party, 
or between citizens of different States, or citizens of the same State claim- 
ing lands under grants of different States, or between citizens of a State 
and any foreign State, citizens, or subjects. The term controversies as 
here used refers to such only as are of a civil as distinguished from those 



206 

of a criminal nature. Tlie judicial power thus delined may be applied to 
new cases as they arise under the Constitution and laws of the United 
States, but it cannot be enlarged by Congress so as to embrace cases not 
enumerated in the Constitution. It has been so held by this court from 
the earliest period. It was so adjudged in 1803 in Marbury vs. Mad- 
ison, and the adjudication has been affirmed in numerous instances 
since. This limitation upon Congress would seem to be conclusive of 
the case from Ohio. To authorize a criminal prosecution in the fed- 
eral courts for an offence against a law of a State, is to extend, the judi- 
cial power of the United States to a case not arising under the Con- 
stitution or laws of the United States. 

"But there is another view of this subject which is equal I3' conclusive 
against the jurisdiction of the federal court. The act of Congress asserts 
a power inconsistent with, and destructive of, the independence of the 
States. The right to control their own officers, to prescribe the duties 
they shall perform, without the supervision or interference of any other 
authority, and the penalties to which they shall be subjected for a viola- 
tion of duty is essential to that independence. If the federal government 
can punish a violation of the laws of the State, it may punish obedience 
to them, and graduate the punishment according to it^ own judgment of 
their propriety and wisdom. It may thus exercise a control over the 
legislation of the States subversive of all their reserved rights. However 
large the powers conferred upon the government formed by the Constitu- 
tion, and however numerons its restraints, the right to enforce their own 
laws by such sanctions as they may deem appropriate is left, where it 
was originall}% with the States. It is a right which has never been sur^ 
rendered. Indeed a State could not be considered as independent in any 
matter, with respect to which its officers, in the discharge of their duties, 
could be subjected to punishment by any external authority ; nor in 
which its officers, in the execution of its laws, could be subject to the 
supervision and interference of others. 

" The invalidity of coercive measures by the United States, to compel 
an officer of a State to perform a duty imposed upon him by a law of 
Congress, is asserted in explicit terms in the case of The Commonwealth 
of Kentucky vs. Dennison. — (24 How., 66.) The Constitution declares 
that ' a person charged in any State with treason, felony, or other crime, 
who shall flee from justice, and be found in another State, shall, on de- 
mand of the executive authority of the State from which he tied, be de- 
liveied up to be removed to the State having jurisdiction of the crime.' 
And the act of Congress of 1793, to give effect to this clause, made it the 
duty of the executive authority of the State, upon the demand mentioned, 
and the production of a properly authenticated copy of the indictment or 
affidavit charging the person demanded with the commission of treason, 
felony, or other crime, to surrender the fugitive. The governor of Ohio 
having refused upon a proper demand to surrender a fugitive from jus- 
tice from Kentucky, the governor of the latter State applied to this 



207 

court lor a UKUKlanius lo (•(iiniicl the pcrrDnnancc ol'tliat duty. P.nl llic 
court, after observin<; that, thoiiiih tlif words 'il shall he the duty,' iu 
ordinary legislation ini]ilicd the assertion of the jiowcr to eoniniand and 
to eausc oludii'iice. said, that lookino to thr suhj. el -matter of tlie law 
and -tlie relations which the United i^tates and the sev.-ral States hear 
to eaeli other," it was of opinion that the words were not used as manda- 
tory and compulsory, but as declaratory of the moral duty created, when 
Congress liad provided the mode of carrying the provision into execution. 
'The act does not provide," the court added, ' any means to compel the 
execution of this duty, nor inflict any punishment for neglect or refusal 
on the part of the executive of the State; nor is there any clause or })ro- 
Tision in the Constitution which arms the government of tlu- United 
States with this power. Indeed, such a power would place every State 
under the control and dominion of the general government, even in the 
administration of its internal concerns and reserved rights. And we 
think it clear that the federal government, under the Constitution, has 
no power to impose on a State officer, as such, any duty whatever, and 
compel him to perform it ; for if it possessed this power it might overload 
the officer with duties which would fill up all his time, and disable him 
from performing his obligations to the State, and might impose on him 
duties of a character incompatible with the rank and dignity to which 
he was elevated by the State. It is true that Congress may authorize a 
particular State officer to perform a particular duty ; but if he declines 
to do so, it does not follow that he may be coerced or punished for his 
refusal. And we are very far from supposing that in using this word 
' duty,' the statesmen who framed and pa.ssed the law, or the President 
who approved and signed it, intended to exercise a coercive poAver over 
State officers not warranted by the Constitution.' And again : ' If the 
governor of Ohio refuses to discharge this duty, there is no power dele- 
gated to the general government, either through the judicial department 
or any other department, to use any coercive means to compel him.' 

" If it be incompetent for the federal government to enforce, by coer- 
cive measures, the performance of a plain dut,y imj)osed by a law of Con- 
gress upon the executive officer of a State, it would seem to be equally 
incompetent for it to enibrco, hj similar nieasures, the performance of a 
duty imposed upon him by a law of a State. If Congress cannot impose 
upon a State officer, as such, the performance of any duty, it would seem 
logically to follow that it cannot subject him to punishment lor the neg- 
lect of such duties as the State may impose. It cannot ])unish for the 
non-performance of a duty which it cannot prescribe. It is a contradic- 
tion in terms to say that it can inflict punishment for disobedience to an 
act, the performance of which it has no constitutional power to command. 

" I am not aware that the doctrine of this case, which is so essential to 
the harmonious working of the State and federal governments, has ever 
been ciiialitied or departed from by this court until the recent decisions 
in the Virginia cases, of which I shall presently speak. It is true that, 



208 

at an early period in the history oftlie government, laws were passed by 
Congress anthoriziug State courts to entertain jurisdiction of proceedings 
by the United States, to enforce penalties and forfeitures under the reve- 
nue laws, and to hear allegations, and take proofs if applications were 
made for their remission. To these laws reference is made in the Ken- 
tucky case, and the court observes, that the powers, which they conferred, 
were for some years exercised by the State tribunals without objection, 
until in some of the States their exercise was declined because it inter- 
fered with and retarded the performance of duties which properly be- 
longed to them as State courts ; and in other States because doubts arose 
as to the power of the State courts to inflict penalties and forfeitures for 
offences against the general government, unless specially authorized to do 
so by the States ; and that the co-operation of the States in those cases 
was a matter of comity which the several sovereignties extended to one 
another for their mutual benefit, and was not regarded by either party as 
an obligation imposed by the Constitution. 

" It is to be observed that by the Constitution the demand for the sur- 
render of a fugitive is to be made by the executive authority of the State 
from which he has fled, but it is not declared upon whom the demand 
shall be made. That was left to be determined by Congress, and it 
provided that the demand should be made upon the executive of the 
State where the fugitive was found. It might have employed its own 
agents, as in the enforcement of the fugitive slave law, and compel them 
to act. But in both cases, if it employed the officers of the State it could 
not restrain nor coerce them. 

" Whenever, therefore, the federal government, instead of acting through 
its own officers, seeks to accomplish its purposes through the agency of 
officers of the States, it must accept the agency witli the conditions upon 
wliich the officers are permitted to act. For example, the Constitution in- 
vests Congress with the 'power to establish a uniform rule of naturaliza- 
tion ;' and this power, from its nature, is exclusive. A concurrent power 
in the States would prevent the uniformity of regulations required on-the 
subject. — (Chirac vs. Chirac, 2 Wheaton, 259; The Federalist, No. 42.) 
Yet Congress, in legislating under this power, has authorized courts of 
record of the States to receive declarations under oath by aliens of their 
intention to become citizens, and to admit them to citizenshii) after a 
limited period of residence, u^ion satisfactory proof as to character and 
attachment to the Constitution. But when Congress prescribed the con- 
ditions and proof upon which aliens might, by the action of the State 
courts, become citizens, its power ended. It could not coerce the State 
courts to hold sessions for such applications, nor fix the time when they 
.should hear the applicants, nor the manner in which they should admin- 
ister the required oaths, nor regulate in any way their procedure. It 
could not compel them to act by mandimus from its own tribunals; nor 
subject their judges to criminal prosecution for th^ir non-action. It could 
accept the agency of those courts only upon such terms as the States 



:2(ili 

should pr('sci'il)('. Tlic suinc tiling is true in all cases where the ajijency 
of State officers is used ; and this doctrine applies with special force to 
judges of elections at which numerous State officers are chosen at the 
same time with representatives to Congress. So far as the election of 
State officers and the registration of voters for their election are con- 
cerned, the federal government has confessedly no authority to interfere. 
And yet the supervision of and interference with the State regulations, 
sanctioned by the act of Congress, when representatives to Congress are 
voted for, amount ])ra<;tical]y to a supervision of and an interference with 
the electiouof State officers, and constitute a jjlain encroachment upon the 
rights of the States, which is well calculated to create irritation towards 
the federal government, and disturb the harmony that all good and pa- 
triotic men should desire to exist between it and the State governments. 

" It was the purpose of the framers of the Constitution to create a 
government which could enforce its own laws, through its own oiiicers 
and tribunals without reliance upon those of the States, and thus avoid 
the principal defect of the government of the Confederation: and they 
fully accomplished their purpose, for, as said by Chief Justice Marshall in 
the McCullough case, ' No ti'ace is to be found in the Constitution of an 
intention to create a dependence of the federal government on the govern- 
ments of the States for the execution of the great powers assigned to it. 
Its means are adecxuate to its ends, and on those means alone was it ex- 
pected to rely for the accomplishment of its ends.' When, therefore, the 
federal government desires to compel by coercive measures and punitive 
sanctions the performance of any duties devolved upon it by the Consti- 
tution, it must appoint its own officers and agents, upon whom its power 
can be exerted. If it sees lit to entrust the performance of such duties 
to officers of a State, it must take their agency, as already stated, upon 
the conditions which the State may impose. The co-op)erative scheme to 
which the majority of the court give tlieir sanction, by which the gen- 
eral government may create one condition and the States another, and 
each make up for and supplement the omissions or defects in the legisla- 
tion of the other, touching the .same subject, with its separate penalties 
for the same oifence, and thus produce a harmonious mosaic of statutory 
regulation, does not appear to have struck the great jurist as a feature in 
our system of goNernment or one that had been sanctioned by its thund- 
ers. 

" It is true that since the recent amendments of the Constitution there 
has been legislation by Congress asserting, as in the instance before us, 
a direct control over State otficers, which previously was never supposed 
to be compatible with the independent existence of the States in their 
reserved ijowers. Much of that legislation has yet to be brought to the 
test of judicial examination ; and until the recent decisions in the Vir- 
ginia cases, I could not have believed that the former carefully considered 
and repeated judgments of this court upon provisions of the Constitution, 
and upon the general character and pui'poses of that instrument, would 
14 



210 

have been disregarded and overruled. These decisions do indeed, in my 
judgment, constitute a new departure. They give to the federal govern- 
ment the power to strip the States of the right to vindicate their author- 
ity in their own courts against a violator of their laws, when the trans- 
gressor happens to be an officer of the United States, or alleges that he is 
denied or cannot enforce some right under their laws. And they assert 
for the federal government a power to subject a judicial officer of a State 
to iHinishment for the manner in which he discharges his duties under her 
laws. The power to punish at all existing, the nature and extent of the 
punishment must depend upon the will of Congress, and may be carried 
to a removal from office. In my judgment, and I say it without intend- 
ing any disrespect to ray associates, no such advance has ever before been 
made toward the conversion of our federal system into a consolidated and 
centralized government. I cannot think that those who framed and ad- 
vocated, and the States which adopted the amendments, contemplated 
any such fundamental change in our theory of government as those de- 
cisions indicate. Prohibitions against legislation on particular subjects 
previously existed, as, for instance, against passing a bill of attainder and 
an ex post facto law, or a law impairing the obligation of contracts ; and 
in enforcing those prohibitions it was never supposed that criminal pros- 
ecutions could be authorized against members of the State legislature for 
passing the prohibited laws, or against members of the State judiciary 
for sustaining them, or against executive officers for enforcing the judi- 
cial determinations. Enactments prescribing such prosecutions would 
have given a fatal blow to the independence and autonomy of the States. 
So of all or nearly all the prohibitions of the recent amendments the 
same doctrine may be a.sserted. In few instances could legislation by 
Congress be deemed appropriate for their enforcement, which should pro- 
vide for the annulment of in'ohibited laws in any other way than through 
the instrumentality of an appeal to the judiciary, when they impinged 
upon the rights of parties. If in any instance there could be such legis- 
lation authorizing a criminal prosecution for disregarding a prohibition, 
that legislation should define the offence and declare the punishment, 
and not invade the independent action of the different departments of 
the State governments within their ai>propriate spheres. Legislation by 
Congress can neither be necessary nor appropriate which would subject to 
criminal prosecution State officers for the performance of duties pre- 
scril>ed by State laws, not having for their object the forcible subversion 
of the government. 

'■ The clause of the Constitution, upon which reliance was placed by 
counsel, on the argument, for the legislation in question, does not, as it 
seems to me, give the slightest support to it. That clause declares that 
' the times, places, and manner of holding elections for senators and rep- 
resentatives shall be prescribed in each State by the legislature thereof; 
but the Congress may, at any time, by law, make or alter such regula- 
tions, except as to the places of choosing senators.' The power of Con- 



{.'iTssllius conlVMied is ritlicr to alter tlie icjiulations i)resoril)cd by tlic 
State or to make new ones; the alteration or new creation enibraeinji 
every partienlar of time, i)lace. and manner, exeej)! the. place of choosing 
senators. But in neitlier mode nor in any resiiect has Congress inter- 
fered with the regnlations i)res(ril)ed by the leiiislatnre of Ohio, or with 
those prescribed by the legiskiture of Maryhxnd. It has not altered them 
or made new ones. It has simply provided for (he ai)p()intment of oHi- 
i-ers to snpervise tlie execution of the State laws, and of marshals to aid 
and i)rote(t them in such supervision, and has added a new penalty for 
disolirying those laws. This is not euibrciug an altered or a new regu- 
lation. NNhatever Congress may properly do touching the regulations, 
one of two things must follow ; either the altered or the new regulation 
remains a State law, or it bec(mies a law of Congress. If it remain a 
State law, it must, like other laws of the State, be enforced through its 
instrumentalities and agencies, and with the penalties which it may see 
tit to f)rescribe, and without the supervision or interference of federal of- 
ficials. If, on the other hand, it become a law of Congress, it must be 
carried into execution by such officers and with such sanctions as Con- 
gress may designate. But as Congress has not altered the regulations for 
the election of representatives prescribed by the Legislature of Ohio or 
of Maryland, either as to time, place, or manner, nor adopted any regu- 
lations of its own, there is nothing for the federal government to enforce 
on the subject. The general authority of Congress to pass all laws nec- 
essary to carry into execution its granted powers, supposes some attempt 
to exercise those powers. There must, therefore, be some regulations 
made by Congress, either by altering those prescribed by the State, or by 
adopting entirely new ones, as to the times, places, and manner of hold- 
ing elections for representatives, before any incidental powers can be in- 
voked to compel obedience to them. In other words, the implied power 
cannot be invoked until some exercise of the express power is attempted, 
and then only to aid its execution. There is no express power in Con- 
gress to enforce State laws by imposing penalties for disobedience to 
them; its punitive power is only implied as a necessary or proper means 
of enforcing its own laws ; nor is there any power delegated to it to su- 
pervise the execution by State officers of State laws. 

"If this view be correct, there is no power in Congress, independently 
of all other considerations, to authorize the appointment of supervisors 
and other officers to superintend and interfere with the election of repre- 
sentatives under the laws of Ohio and Maryland, or to annex a penalty 
to the violation of those laws, and the action of the circuit courts was 
Avithout jurisdiction and void. The act of Congress in question was 
})a.ssed, as it seems to me, in disregard of the object of the constitutional 
provision. That was designed simply to give to the general government 
the means of its own preservation against a possible dissolution from the 
hostility of the States to the election of representatives, or from their 
neglect to provide suitable means ibv holding such elections. This is 



212 

evident from the language of its advocates, some of them members of the 
convention, when the Constitution was presented to the country for adop- 
tion. In commenting upon it in his report of the debates, Mr. Madison 
said, that it was meant ' to give the national legislature a power not only 
to alter the jn-ovisions of the States, but to make regulations, in case the 
States should fail or refuse altogether:— (EUiotVs Debates, 402.) And in 
the Virginia convention called to consider the Constitution, he observed 
that ' it was found Impossible to fix the time, place, and manner of the 
election of representatives in the Constitution. It was found necessary 
to leave the regulation of these, in the first place, to the State govern- 
monts, as being best acquainted Avith the situation of the people, subject 
to the control of the general government, in order to enable it to produce 
uniformity, and prevent its own dissolution.'' — (3 Elliott's Debates, 367.) 
And in the Federalist. Hamilton said, that the propriety of the clause in 
question rested ' upon the evidence of the plain proposition that ever^^ 
government should contain in itself the means of its own preservation.' 
" Similar language is found in the debates in conventions of the other 
States and in the writings of jurists and statesmen of the period. The 
conduct of Rhode Island was referred to as illustrative of the evils to be 
avoided. That State was not represented by delegates in Congress for 
years, owing to the character and views of the i)revailing party; and 
Congress was often embarrassed by their absence. The same evil, it was 
urged, might result from a similar cause, and Congress should, therefore, 
possess the power to give the people an opportunity of electing represen- 
tatives if the States should neglect or refuse to make the necessary regu- 
lations. 

'■ In the conventions of several States which ratified the Constitution, 
an amendment was pi-oposed to limit in express terms the action of Con- 
gress to cases of neglect or refusal of a State to make proper provisions 
for congressional elections, and Avas supported by a majority of the thir- 
teen States; but it was finally abandoned upon the ground of the great 
improbability of congressional interference so long as the States performed 
their duty. When Congress does interfere and. provide regulations, the 
duty of rendering them effectual, so far as they may require affirmative 
action, will devolve solely upon the federal government. It will then be 
federal power which is to be exercised, and its enforcement, if promoted 
by punitive sauctions, must be through federal officers and agents; for, 
as said by Mr. Justice Stary in Prigg vs. Pennsylvania. ' The national 
government, in the absence of all positive provisions to the contrary, is 
bound, through its own proper department, legislative, judicial, or execu- 
tive, as the case may require, to carry into effect all the rights and duties 
imposed upon it by the Constitution.' If State officers and Stat§ agents 
are employed, they must be taken, as already said, with the conditions 
upon which the States may permit them to act, and without responsibil- 
ity to the federaj authorities. The power vested in Congress is to alter 
the regulations prescribed by the legislatures of the States, or to make 



new ones, as to thi^ times, jilaees, and manner of liohl'nuj the elections. 
Tliose whieh relate to the times and ])laces will seldom recjnire any allirm- 
ative action beyond their designation. And reiiulations as to the inanmr 
of hohliny them cannot extend beyond the desij;nation of the nuxh' in 
whieh the will of the voters shall be cxiinsscd and ascertained. The 
power does not antiioii/.e ('oniiress to detennine who .shall participate in 
the election, or what siiall i>e the qualilicat ions of voters. These are mat- 
ters not pertaining to or involved in the manner of holding the election, 
and their regnlation rests exclu.sively with the States. The only restric- 
tion upon them with respect to these matters is found in the provision 
that the electors of representatives in Congress shall have the qualitica- 
tions required for electors of the most numerous branch of the State leg- 
islature, and the provision relating to the suffrage of the colored race. 
And whatever regulations Congress may prescribe as to the manner of 
holding the election for representatives must be so framed as to leave the 
election of State officers free, otherwise they cannot l:e maintained. In 
one of the niunbers of the Federalist, Mr. Hamilton, in defending the 
adoption of the clause in the Constitution, uses this language : ' Suppose 
an article had been introduced into the Con.stitutiou empowering the 
United States to regulate the elections for the particular States, would 
any man have hesitated to condemn it, both as an unwarrantable trans- 
position of power, and as a premeditated engine for the destruction of the 
State governments ? The violation of principle in this case -would have 
required no comment.' By the act of Congress sustained by the court an 
interference with State elections is authorized almost as destructive of 
their control by the States as the direct regulation whieh he thought no 
man would hesitate to condemn. 

■'The views expressed derive further support from the fact that the 
constitutional provision applies equally to the election of senators, excejjt 
as to the place of choosing them, as it does to the election of representa- 
tives. It M ill not be pretended that Congress could authorize the ap- 
pointment of supervisors to examine the roll of members of State legi.s- 
latures and pa.ss upon the validity of their titles, or to scrutinize the bal- 
loting for senators ; or could delegate to special deputy marshals the power 
to arrest any member resisting and repelling the interference of the su- 
pervisors. But if Congress can ^authorize such officers to interfere with 
the judges of election apjjointed under State laws in the discharge of their 
duties when representatives are voted for, it can authorize such officers to 
interfere with members of the State legislatures when senators are voted 
for. The language of the Constitution conferring power upon Congress 
to alter the regulations of the States, or to make new regulations on the 
.subject, is as applicable in the one case as in the other. The objection to 
such legislation in both cases is that State officers are not responsible to 
the federal government for the manner in which they perform their du- 
ties, nor subject to its control. Penal sanctions and coercive measures by 
federal law cannot be enforced against them. Whenever, as in some in- 



214 

stances is the case, a State officer is required by the Constitution to per- 
form a duty, the rnanner of which may be prescribed by Congress, as in 
the election of senators by members of State legislatures, those officers 
are responsible only to their States for their official conduct. The federal 
government cannot touch them. Tliere are remedies for their disregard 
of its regulations, which can be applied without interfering with their 
oificial character as State officers. Thus if its regulations for the election 
of senators should not be followed, the election had in disregard of them 
might be invalidated ; but no one, however extreme in his views, would 
contend that in such a case the members of the legislature could be sub- 
jected to criminal prosecution for their action. With respect to the elec- 
tion of representatives, so long as Congress does not adopt regulations of 
its own and enforce them through federal officers, but permits the regula- 
tions of the States to remain, it must depend for a compliance with them 
upon the fidelity of the State officers and their responsibility to their own 
government. All the provisions of the law, therefore, authorizing super-' 
visoi's and marshals to interfere with those officers in the discharge of 
their duties, and providing for criminal prosecutions against them in the 
federal courts, are, in my judgment, clearly in conflict with the Constitu- 
tion. The law was adopted, no doubt, with the object of preventing 
frauds at elections for members of Congress, but it does not seem to have 
occurred to its authors that the States are as much interested as the gen- 
eral government in guarding against frauds at those elections and in main- 
taining their purity, and, if possible, more so, as their principal officers 
are elected at the same time. If fraud be successfully perpetrated in any 
case, they will be the first and the greatest sufferers. Tliey are invested 
with the sole power to regulate domestic affairs of the highest moment 
to the prosperity and happiness of their people, affecting the acci(uisition, 
enjoyment, transfer, and descent of property ; the marriage relation, and 
the education of children ; and if such momentous and vital concerns 
liiay be wisely and safely entrusted to them, I do not think that any ap- 
prehension need be felt if the supervision of all elections in their respec- 
tive States should also be left to them. 

" Much has been said in argument of the power of the general govern- 
ment to enforce its own laws, and in so doing to preserve the peace, 
though it is not very apparent what pertinency the observations have to 
the questions involved in the cases before us. No one will deny that in 
the powers granted to it the general government is supreme, and that, 
upon all subjects within their scope, it can make its authority respected 
and obeyed throughout the limits of the Republic ; and that it can repress 
all disorders and disturbance which interfere with the enforcement of its 
laws. But I am unable to perceive in this fact, which all sensible men 
acknowledge, any cause for the exercise of ungranted power. The greater 
its lawful power, the greater the reason for not usurping more. Unrest, 
disquiet, and disturbance will always arise among a people, jealous of 
their rights, from the exercise by the general government of powers which 
they have reserved to themselves or to the States. 



215 

" My second proposition i.s that it is not ronipctont for Congress to make 
the exercise of its punitive power dejtcndent ui)on the legishition of th*^ 
States. The act, upon which the indictment of the jjctitioner from Ohio 
is founded, makes the neglect or violatidu of a duty prescribed by a hiw 
oi' the State in regard to an election at wiiicli a representative in Con- 
gress is voted for, a criunual otrincc. It docs not say that the neglect or 
disregard of a duty prcserihcd by any r.ris/iin/ law shall t-oustitule such 
an oll'ence. it is the neglect or disregard of (Oiij dniij prescribed by (Oiy 
law of the State, present or future. The act of Congress is not changed in 
terms ^vitli the changing laws of the State ; but its penalty is to be 
shifted with the shifting humors of the State legislatures. I cannot 
think that such punitive legislation is valid which varies, not by direc- 
tion of the federal legislators, upon new knowledge or larger experience, 
but 1)y the direction of some external authority which makes the same 
act lawful in one State and criminal in another, not according to the 
views of Congress as to its propriety, but to those of another body. The 
Constitution vests all the legislative power of the federal government in 
Congress ; and from its nature this power cannot be delegated to others, 
except as its delegation may be involved by the creation of an inferior 
local government or department. Congress can endow- territorial govern- 
ments and municipal corporations with legislative powers, as the posses- 
sion of such powers for certain purposes of local administration is indis- 
pensable to their existence. So, also, it can invest the heads of depart- 
ments and of the army and navy with power to prescribe regulations to 
enforce discipline, order, and efficiency. Its possession is implied in their 
creation ; but legi-slative power over subjects which come under the im- 
mediate control of Congress, such as defining ofteuces against the United 
States, and prescribing punishment for them cannot be delegated to any 
other government or authority. Congress cannot, for example, leave to 
the States the enactment of laws and restrict the United States to their 
enforcement. There are many citizens of the United States in foi-eign 
countrres, in Japan, China, India, and Africa. Could Congress enact that 
a crime against one of those States should be punished as a crime against 
the United States ? Can Congress abdicate its functions and depute foreign 
countries to act for it ? If Congress cannot do this with respect to offences 
against those States, how can it enforce penalties for otienees against 
any other States, though they be of our own Union ? If Congress could 
depute its authority in this way ; if it could say that it will punish as 
an otfence what another power enacts as such, it might do the .same thing 
with respect to the commands of any other authority, as, for example, of 
the President or the head of a department. It could enact that wiiat the 
President proclaims shall be law ; that w hat he declares to Ije olfences 
shall be puni.shed as such. Surely no one will go so far as this, and yet 
I am vinable to see the distinction in principle between the existing law 
and the one I suppose, which seems so extravagant and absurd. 

" I will not pursue the subject further, but those who deem this ques- 
tion at all doubtful or difficult, may find something worthy of thought 



216 

in the opiuioiiS of the Court of Appeals of New York and of the supreme 
courts of several other States, where this subject is treated with a full- 
ness and learning, which leaves nothing to be improved and nothing to 
be added." 



CORPOKATIOXS. — CASEt? RELATING T(3 THEIR PoWERS AND 

Liabilities, and their Subjection to the Control of 
THE State. 

Cor|i()ratioii.s of all kinds, puhlic and private, foreign and 
domestic, commercial, benevolent, and religious, have been 
the frequent subject of consideration liy the Supreme Court, 
Their powers and lialuHties, their creation, amendment, 
and dissolution; how far they arc to 1)e regarded as con- 
tracts within tlie prolnl)ition of the Constitution against 
State impairment, and how far they arc subject to tlie con- 
trol of the State, have been treated in numerous cases 
with exhaustive fullness. Every judge on the bench has 
given opinions in some of the cases. Judge Field has 
given opinions in several of them; and, among otiiers, in 
the following : Paul vs. Virginia (8 Wallace, 168) ; Marsh 
vs. Fidton County (10 Wallace, 676); Tomhnson vs. Jes- 
sup (15 Wallace, 4o4); Minot vs. The Philadelphia, Wil- 
mington and Baltimore Railroad Company (18 Wallace, 
206); Board of Commissioners of Tippecanoe County vs. 
Lucas, Treasurer (93 IT. S., 108); Broughton vs. Pensa- 
cola (Ibid., 266); and United States vs. New Orleans (98 
IT. S., 381). In the case of The Pensacola Telegraph 
Company vs. The Western Union Telegraph Company he 
wrote a dissenting opinion (96 U. S., 14), 

In Paul vs. Virginia the court held that corporations 
were not citizens within the meaning of the clause of the 
Constitution which declares that " the citizens of each 
State shall be entitled to all the privileges and immunities 
of citizens in the several States ;" that the terms " citi- 
zens " as there used applied only to natural persons, mem- 



217 

l)ors of the l»o(ly-]»olitie, owing alleginnce to tlio St:\t(\, and 
not to avtitic'uil luTsons created by the li-gislatiuH! and 
[losses^sing only the attrihutes wliieh the legii>hitui-L' had 
prescribed. It was true, the conrt observed, that it bad 
been held that where contracts or rights of property wei'c 
to l)e enforced })\ or against a (Hir[)oration, the courts 
of llic I'nited States will, for ibe pui-posc of maintaining 
jurisdii'tion, consider tlie cor[>oration as reiircscnting citi- 
zens of the State unihM- the biws of which it was created, 
and to that extent would treat a coi-jioi'ation as a citizen 
within the cbmsc of the ( 'onstitntion extending the jndic- 
icial power of the United States to controvci'sies between 
citizens of ditrerent States; bnt the court added tliat in 
no case iiad a corporation liecn consiik'rcd a citizen witlnn 
the meaning of the provisit^i, whicli declares that "the 
citizens of each State shall he entitled to all tlie privileges 
and immunities of citizens in the several States." AVith 
respect to that provision Judge Field, speaking for the 
court, said as follows : 

'■ It was undoubtedly the object of the clause in question to place the 
citizens of each State upon the same footing -svith citizens of other States, 
so far as the advantages resulting from citizenship in those States are con- 
cerned. It relieves them from the disabilities of alienage in otherStates ; 
it inhil)its discriminating legislation against them by other States; it 
gives them the right of free ingress into other States, and egress from 
them : it insures to them in other States the same freedom po.ssessed by 
the citizens of those States in the acquisition and enjoyment of property 
and in the pursuit of happiness; and it secures to them in other States 
the equal protection of their laws. It has been justly said that no pro- 
vision in the Constitution has tended so strongly to constitute the citi- 
zens of the United States one people as this.* Indeed, without some pro- 
vision of the kind removing from the citizens of each State the disabili- 
ties of alienage in the other States, and giving them equality of privilege 
with citizens of those States, the Republic would have constituted little 
more than a league of States; it would not have constituted the Union 
which now exists. 

" But the privileges and immunities secured to citizens of each State in 
the several States, by the provision in question, are those privileges and 
immunities which are common to the citizens in the latter States under 

* Lcmmon vs. The I'eople, 20 New York, 607. 



218 

their constitution and laws by virtue of their being citizens. Special 
privileges enjoyed by citizens in their own States are not secured in other 
States by this provision. It was not intended by the provision to gi\e to 
the laws of one State any operation in other States. They can have no 
such operation, except by the permission, express or implied, of those 
States. The special privileges which they confer must, therefore, be en- 
joyed at home, unless the assent of other States to their enjoyment therein 
be given. 

"Now a grant of corporate existence is a grant of special privileges to 
the corporators, enabling them to act for certain designated purposes as a 
single individual, and exempting them (unless otherwise specially pro- 
vided) from individual liability. , The corporation beingthe mere creation 
of local law, can have no legal existence beyond the limits of the sov- 
ereignty where created. As said by this court in Bank of Augusta vs. 
Earlc, ' it must dwell in the place of its creation, and cannot migrate to 
another sovereignty.' The recognition of its existence even by other 
States, and the enforcement of its contracts made therein, depend purely 
upon the comity of those States — a comity which is never extended where 
the existence of the corporation or the exercise of its powers are preju- 
dicial to their interests or repugnant to their policy. Having no absolute 
right of recognition in other States, but depending for such recognition 
and the enforcement of its contracts upon their assent, it follows, as a 
matter of course, that such assent may be granted upon such terms and 
conditions as those States may think jjroper to impose. They nuiy ex- 
clude the foreign corporation entirely ; they may restrict its business to 
particular localities, or they nray exact sucli security for the performance 
of its contracts with their citizens as in their judgment will best promote 
the public interest. The whole matter rests in their discretion. 

" If, on the other hand, the provision of the Constitution could be con- 
strued to secure to citizens of each State in other States the peculiar 
privileges conferred by their laws, an extra-territorial operation would be 
given to local legislation utterly destructive of the independence and the 
harmony of the States. At the present day corporations are multiplied 
to an almost iudetinite extent. Tiiere is scarcely a business pursuetl re- 
quiring the exjienditure of large capital, or the union of large numbers, 
that is not carried on by corporations. It is not too much to say that the 
wealth and business of the country are to a great extent controlled by 
them. And if, when comjiosed of citizens of one State, their corporate 
jjowers and franchises could be exercised in other States without restric- 
tion, it is easy to see that, with the advantages thus possessed, the most 
important business of those States would soon pass into their hands. 
The principal business of every State would, in fact, be controlled by cor- 
porations created by other States. 

" If the right asserted of the foreign corporation, when composed of 
citizens of one State, to transact business in other States were even re- 
stricted to such business as corporations of those States were authorized 



210 

to transact, it would still follow that those Htatcs would bo miablo to 
limit tlu' numhor of corporations doing business therein. They could 
not charter a company for any purpose, however restricted, without at 
once openins the door to a liood of corporations from other States to cn- 
gaii-e in the sanu> pursuits. They could not repel an intruding corporation, 
exc<i>l on tlie condition of refusing incori>nration for a similar pur^iosc 
to their own citizens, and yet it might be of the highest public interest 
that the number of corporations in tbe Stale should be limited ; that 
they sliouhl be re(iuired to give publicity to their transactions; to sub- 
mit their atfairs to proper exaiuinalion ; to be sul)ject to forfeiture of 
their cori)orate rights in case of mismanagement, and that their officers 
should be held to a strict accountability for the manner in which the 
business of the corporation is managed, and lie liable to sumuuiry re- 
nu>val. 

" ' It is impossible,' to repeat the language of this court in i:'i,iL- „f An- 
ffiisfa IS. Ein-lc, 'upon any sound principle, to give such a construction to 
the article in question,' — a construction which would lead to results like 
these." 

Ill Marsh vs. Fnlton County the court hold thtir where 
honds of a county wore issued without autliorily hy its 
supervisoivs to a raih-oad company, tliey were iiivahd in 
the liands of an innocent purchaser; that the Mutliority to 
contract innst exist hefore any protection as such' purchaser 
can be cUiinied hy the hoUUa-. And furtlier, tint where 
the supervisors possessed no authority to make a subscrip- 
tion or issue bonds to a raih'oad company in the first in- 
stance, without the previous sanction of the qualified voters 
of the county, they could not ratify a subscription to the 
company already made without sucli authority. Said the 
coitrt, speaking through Judge Field, as h)llows : 

" A ratification is, in its effect upon the act of an agent, equivalent to 
the possession by him of a previous authority. It operates upon the act 
ratified in the same manner as though the authority of the agent to do 
the act existed originally. It follows that a ratification can only be made 
when the party ratifying possesses the power to perform the act ratified. 
The supervisors possessed no authority to make the subscription or issue 
the bonds in the first instance without the previous sanction of the quali- 
fied voters of the county. The supervisors, in that particular, were the 
mere agents of the county. They could not, therefore, ratify a subscrip- 
tion without a vote of the county, becaiase they could not nuike a sub- 
scription in the first instance without such authorization. It would be 
absurd to say that they could, without such vote, by simple expressions 



220 

of approval, or in some other indirect way, give validity to acts, when 
they were directly in terms prohibited by statute from doing those acts 
until after such vote was had. That would be equivalent to saying that 
an agent, not having the power to do a particular act for his principal, 
could give validity to such act by its indirect recognition.'^ 

" We do not mean to intimate that liabilities may not be incurred by 
counties independent of the statute. Undoubtedly they may. The 
obligation to dojustice rests upon all persons, natural and artificial, and 
if a county obtains the money or property of others without authority, 
the law, independent of any statute, will compel restitution or compen- 
sation. But this is a very difl[erent thing from enforcing an obligation 
attempted to be created in one way, when the statute declares that it 
shall only be created in another and different way."' 

Ill Touilinson vs. Jessnp the court lielrl that, where a 
general hiw of South Carohna })assedin 1841 provided that 
the chart c^-r of every corporation snhse(piently granted, and 
any renewal, amendment, or modificaticni thereof, should 
he suhject to amendment, alteration, or repeal hy legisla- 
tive authority, unless the act granting the charter or the 
renewal, amendment, or modiUcation, in express terms 
excepted it from the general law, it was competent for 
the legislature of the State to alter an amendment to a 
corporation suhsequently created, which exempted its prop- 
erty from taxation without such exception, and to subject 
the property to taxation; that the ])ower reserved to the 
State hy the general law authorized any change in the 
contract of the corporation, created hy the charter between 
the corporators and the State, as it originally existed, or as 
subsequently' modified, or its entire revocation. On this 
point. Judge Field, speaking for the court, said as follows : 

" The object of the reservation, and of similar reservations in other 
charters, is to prevent a grant of corporate rights and privileges in a form 
which will preclude legislative interference with their exercise if the 
public interest .should at any time require such interference. It is a 
provision intended to preserve to the State control over its contract with 
the corporatora, which without that provision would be irrepealable and 

protected from any measures aftecting its obligation. Immunity from 

taxation, constituting in these cases a part of the contract with the gov- 
ernment, is, by the reservation of power such as is contained in the law 

* McCraclceu vs. City of San Francisco, 16 Cal., G24. 



221 

of 1841, sn1)ii-ct to iKMVVokcd (Hiually willi any oilier i>r..\ isiun of (lir 
oliarter whenover the leyislaturo may (Iccin il cxiicdicut lur llic i)ul)lir 
iutorff<ts that the nnocation i^hall hv made. The ns.Tva( ion allcls the 
entire irlatioii lietwcen t he State and the eorpoiat ion. ami places under leg- 
islative eontiol all rights. pi-ivile,<;es, and iMuniinilies derived l.y its 
charter directly iVoni the State. Ui.iihts ac(|uired l.y third parties, and 
which have heeonie vested unilev the charter, in the lc<iitimate exercise 
of its powers, .stand upon a different footiii.u; hut of such rights it is 
unnecessary to speak here. The State only asserts in the (ircscnt ease 
the power under the reservation to modify its own contract with the 
corporators ; it does not contend for :i power to revoke the contracts of 
tlie corporation with other parties, or to impair any vested ri-hts therehy 
acciuired." 

Ill Miiiot VS. Tlio Philadelphia, W^ihniiio-toii and Balti- 
more Railroad C'onipany -de.^i.Uiiated in the reports as 
"The Delaware Kailroad Tax "-the eonrt .u'ave strong 
expression to the rule that exemption from taxation hy 
the State irmst he strictly pursued. On this point, 
speaking through Judge Field, it said as follows -. 

'• It has also hcen repeatedly held hy this court that the legislature of 
a State may exempt particular parcels of property or the property of par- 
ticular person.sor corporations from ta.vation either for a specified period 
or perpetually, or may limit the amount or rate of taxation to which 
.such property shall be subjected. And when such immunity is conferred, 
or such limitation is prescribed by the charter of a corporation, it becomes 
a part of the contract, and is eqnally inviolate with its other stipulations. 
But before any such exemption or limitation can be admitted, the intent 
of the legislature to confer the immunity or prescribe the limitation, 
must be clear beyond a reasonable doiil)t. All i)ublic grants are strictly 
construed. Nothing can be taken against the State by presumption or 
inference. The established rule of construction in such cases is that 
rights, privileges, and immunities, not expressly granted, are reserved. 
There is no safety to the public inteiests in any other rule. And with 
special force does the principle, upon which the rule rests, apply when 
the right, privilege, or immunity claimed calls for any abridgment of the 
powers of the government, or any restraint upon their exercise. The 
power of taxation is an attribute of sovereignty, and is essential to every 
independent government. As this court has said, the whole community 
is interested in retaining it undiminished, and has ' a right to insist that 
its abandonment ought not to be presuin<-d in a case in which the delil)- 
erate purpose of the State to abandon it does not appear.'-' If the point 
were not already adjndged, it would admit of grave consideration, whether 

* Providence Bank vs. Billings. 4 Peters, 5G1. 



tlic legislature of a State can surrender this i)0\ver, and make its action 
in this respect binding upon its successors, any more than it can surrender 
its police power or its right of eminent domain. But the point being ad- 
judged, the surrender, when claimed, must be shown by clear, unambig- 
uous language, which Avill admit of no reasonable construction consistent 
with the reservation of the power. If a doubt arise as to the intent of 
the legislature, that doubt must be solved in favor of the State.'' 

The same doctrine is reiterated in equally emphatic 
terms in the case of Hoge vs. The Railroad Company (99 
U.S., 354-5). 

In the case of Board of Commissioners of Tip[)ecanoe 
County vs. Lucas, Treasurer, the court held that munici}ud 
corporations are mere instrumentalities of the State for 
the convenient administration of government, and that 
tlieir powers may be qualified, enlarged, or withdrawn at 
the pleasure of the legislature; that the tenure of property, 
derived from the State for specific public pui'poses, or 
obtained for such purposes through means which the State 
alone can authorize, — that is, taxation — is so far su])ject 
to the contrbl of the legislature, that the property may be 
applied to other public uses of the municipaHty than those 
originally designated, and, therefore, that it was compe- 
tent for the legislature to direct a restitution to taxpayers 
of a county, or other municipal corporation, of property 
exacted from them by taxation, into whatever form the 
property may have been changed, so long as it remained 
in' the possession of the municipality. 

In Broughton vs. Pensacola the court held that a change 
in the charter of a municipal cor]»oration, in whole or in 
part, by an amendment of its provisions, or the substitution 
of a new charter in place of the old one, embracing suli- 
stantially the same coportitors and the same territory, 
would not be deemed, in the absence of express legislative 
declaration otherwise, to aflect the identity of the corpo- 
ration, or to relieve it from its previous liabilities, although 
difi"'erent powers were possessed under the amended or new 
charter, and dilferent officers administered its afiairs. The 
court said, speaking through Judge Field, as follows : 



228 

" Altlioiijili a muiiiciiial coi-poration. so I'ai'as it is iiivcslcd witli siihor- 
dinate legislative ix.w.as lor local purposes, is a mere iiisl rimieiilality of 
the State tor the coiiveiiieiil adiuinist ration oI'l^on eriimeiit, \ .1 . wlun au- 
thorized to take slock iu a railroad company, and issue its ol.li-at ions in 
payment of the stock, it is to tliat ext.ait to l.e deenud a privat.' corpor- 
ation, and its oblijiutions are secured by all tiu' fiiuiranlic s wliich jirotect 
the enuamauents of private individuals. The inhilution ol' the Constitu- 
tion, which ])reserves against the interference of a State tiie sa(a-e(lness of 
eoiitracts, a])plie.s to the liabilities of municipal eori)orai ions cicated by 
its permission, and althouuh the repeal or modilication of the charter of 
a eoriioration of that kind is not within the inhibition, yet it will not be 
admitted, where its Iciiislation is susceptible of another construetion, that 
the State has in this way sanctioned an evasion of or escai)e from liabilities, 
the creation of which it authorized. When, thereibre, a new tbrm is 
given to an old municipal corporation, or such a eor])oration is reorgan- 
ized under a new charter, taking, in its new organization, the place of the 
old one, embracing substantially the same corporators and the same ter- 
ritory, it will be presumed that the legislature intended a continued ex- 
istence of the same corporation, although different powers are possessed 
under the new charter, and different otKicers administer its affairs : and 
in the absence of express provision tor their ]iaynient otherwise, it will 
also be presumed in such ca.se that the legislature intended that the lia- 
1)ilities, as well as the rights of property of the corporation in its old 
Ibrm, should accompany the corporation in its reorganization. That such 
was the intention of the .State of Florida in the present ease, we have no 
doubt: to suppose otherwise would be to impute to her an insensibility 
to the claims of morality and justice, which nothing in her history war- 
rants. 

" The principle which applies to the State would seem to be applicable 
to cases of this kind. Obligations contracted by its agents continue 
against the State whatever changes may take jdace in its constitution of 
government. ' The new government,' says Wheaton, ' succeeds to the fis- 
cal rights, and is bound to fulfill the fiscal obligations of the former gov- 
ernment. It beco7ues entitled to the public domain and other property 
of the State, and is bound to pay its debts previously contracted.' — (Inter. 
Law, 30.) So a change in the charter of a municipal corporation, in 
whole or part, by an amendment of its provisions, or the substitution of 
a new charter in place of the old one, should not he deemed, in the ab- 
sence of express legislative declaration otherwise, to affect the identity 
of the corporation, or to relieve it from its previous liabilities." 

Til the case of. the United States vs. Xew Oi-leans, the 
eoiift held that wliere inunieipal corjxiratious are created, 
tlie power of taxation is vested in thern as an essential 
attrihiite for ah. the pnr[)Oses of their existence, unless its 
exercise he in express terms prolnhited ; and that when. 



±24 

in order to exci-uto ;i pul>lic work, they have heen vested 
with authority to borrow money or incur an obligation, 
they liavo the power to levy a tax to raise revenue to pay 
the nione}' or discharge the obligation without any special 
mention that such power is granted, and that in case of a 
refusal to provide for the payment of the indebtedness 
contracted, a mandamus should be issued to compel the 
levying of such tax. On this point the court said, speak- 
ing through Judge Field : 

"The position that the power of taxation belongs exelusively to the 
legislative branch of the government, no one will controvert. Under our 
system it is lodged nowhere else. But it is a power that may be dele- 
gated by the legislature to municipal corporations, which are merely the 
instrumentalities of the State for the better administration of the govern- 
ment in matters of local concern. When such a corporation is created 
the power of taxation is vested in it as an essential attribute for all the 
purposes of its existence, unless its exercise be in express terms prohib- 
ited. For the accomplishment of those purposes, its authorities, however 
limited the corporation, must have the power to raise money and control 
its expenditure. In a city, even of snuill extent, they have to provide 
for the preservation of peace, good order, and health, and the execution 
of such measures as conduce to the general good of its citizens ; such as 
the opening and repairing of streets, the construction of sidewalks, sew- 
ers, and drains, the introduction of water, and the establishment of a fire 
and police department. In a city like New Orleans, situated on a navi- 
gable stream, or on a harbor of a lake or sea, their powers are usually en- 
larged so as to emijrace the building of wharves and docks or levees for 
the benelit of commerce, and they may extend also to the construction of 
roads leading to it, or the contributing of aid towards their construction. 
The number and variety of works which may be authorized, having a 
general regard to the weltare of the city or of its people, are mere mat- 
ters of legislative discretion. All of tliem require for their execution 
considerable expenditures of money. Their authorization without pro- 
viding the means for such expenditures would be an idle and futile pro- 
ceeding. Tlieir authorization, therefore, implies and carries with it the 
power to adopt the ordinary means employed by such bodies to raise 
funds for their execution, unless such funds are otherwise pi'ovided. 
And the ordinary means in such cases is taxation. A municipality with- 
out the power of taxation would be a body without life, incapable of acl- 
iug, and serving no usel'ul purpose'. 

"For the same reason, when authority to borrow money or incur an 
obligation in order to execute a public work is conferred upon a munici- 
pal corporation, the power to levy a tax for its payment or the discharge 
of the obligation accompanies it ; a"nd this, too, without any special men- 



tiou tliat such power is Liraiitcd. This arisi's iVom tiic lact Ihal such cor- 
l)orations sel(h)iu possess — so seldom, iiKh'ed, as to be exceptioiuil — any 
means to disc-barge their pecnniary ol)ligations except by taxation. ' It 
is, therefore, to l)e interred,' as observed by tliis court in Loan Association 
vs. Topeka, (20 Wall., (JtiO,) ' that when the legislature of a State authorizes 
a county or city to contract a debt by bond, it inteiuls to authorize it to 
levy such taxes as. arc necessary to pay the dclit, unless there is in tlu' 
act itself, or in some general statute, a limitation u])ou tlu' power ol' tax- 
ation w hi(-h repels sueli an inference.'" 

Ill tlu! case of The Pensacola 'LY'leii'raiili Coiiipany vs. 
'I'lie WeskTii ITuioii TeleoTajili ('(iiii|iaii_v a Itill w:is tiled 
to ol)laiii an iujiAiietiou restraiuing the (lei'eii(laiit, tlie West- 
ern ITnion Co., troin erecting, usino-, or maintaining a tel- 
egrapli line in the county of Escaiubia, Florida, on the 
ground that l»y a statute of the State, passed in December, 
1866, the complainant, the Fensacola Co., had acquired 
the exckisive right to erect and use lines of telegraph in 
that county for the period of twenty years. The court be- 
low (k'liied the injunction and dismissed the bill, upon the 
ground that the statute was in conflict with the act of 
Congress of July 24tli, 1866, entitled '• An act to :ud in 
the construction of telegraph lines, and to secure to the 
government the nse of the same for postal, military, 
and other purposes," tlie first section of whieh provides 
"■ that any telegraph company now organized, (n- which 
may hereafter be organized, under the laws of any State 
in this Union, shall have the right to construct, main- 
tain, and operate lines of telegraph through and over any 
portion of the public domain of the United States, over 
and along any of the military or post roads of the United 
States, which have 1)een or may hereafter be declared 
such by act of Congress, and over, under, or across the 
navigable streams or waters of the United States: PmrnJcd, 
That sucli lines of telegraph shall be so constructed and 
maintained as not to obstruct the navigation of such streams 
and waters, or interfere with the ordinary travel on sueli 
military or post roads. And any of said compaiiit's shall 
have the right to take and use from sueh puf)lic lands the 
necessary stone, timber, and other materials for its posts, 
15 



226 

piers, stations, and otlier needful uses in the construction, 
maintenance, and operation of said lines of telegraph, and 
may pre-empt and use such portion of the nnoccnpied 
public lands subject to pre-emption, through which its said 
lines of telegraph may be located, as maybe necessary for 
its stations, not exceeding forty aci-es for each station, but 
such stations shall not be within lifteen miles of each 
other." * 

The statute of Florida incorporated the Pensacola Tel- 
egraph Company, which had been organized in December 
of the previous year, and in terms declared that it should 
enjoy " the sole and exclusive privilege and right of es- 
tablishing and maintaining lines of electric telegraph in 
the counties of Escambia and Santa Rosa, either from dif- 
ferent points within said counties, or connecting with lines 
coming into said counties, or either of them, from other 
points in this or any other State," 

Soon after its organization and in 1866 the company 
erected a line of telegraph from the city of Pensacola, 
through the county of Escambia, to the southern boundary 
of Alabama, a distance of forty-seven miles, which has 
since been open and in continuous operation. It was lo- 
cated, hy permission of the Alal)ama and Florida Rail- 
road C\unpany, along its line of railway. After tlie charter 
was obtained, the line was substantially rebuilt, and two 
other lines in the county were erected by the company. 

In February, 1873, the Legislature of Florida passed an 
act granting to the Pensacola and Louisville Railroad 
Company, which had become the assignee of the Alabama 
and Florida Railroad Company, the right to construct and 
operate telegraph lines upon its right-of-way from the bay 
of Pensacola to the junction of its road with the Mobile 
and Montgomery railroad, and to connect the same with 
the lines of other companies. By an amendatory act 
passed in the following year (February, 1874), the rail- 
road company was authorized to construct and operate the 

* 14 statutes at Large, 221. 



lines, ii:)l onlv nloii.u' its road :i< lli;'!! li.catc.ljmt as it 
might 1)1' thoreal'tcr located, and aloiiii- coinu'etiiii;- roads 
in tlie eountv, to (lie boundary of AlaKania, and to con- 
nect and consolidate tlieni with other tele;;-i'a[(li conqianies, 
and to sell and assig-n the property a[)pert;iining' to them, 
and the rights, privileges, and franchises conferred by the 
act; and it empowered the assignee, in such case, to con- 
struct and operate the lines and to enjoy these rights, 
privileges, and franchises. 

Under this amendatory act, and soon after its [)assage, 
the railroad company assigned the rights, privileges, and 
franchises thus ac(piired to the Western Union Telegraph 
Company, a ccn-poration created under the hiws of the 
State of New York, which at once proceeded to erect a 
line from the city of Pensacola to the southern boundary 
of Alabama, along tlie identical railway on which tlie 
complainant's Hue was erected in 1860, and ever afterwards 
located, with the avowed intention of using it to transmit 
for compensation messages for the public in the county 
and State. By the erection and operation of this line, the 
complainant alleged that its property- would become val- 
ueless, and that it would lose the benefits of the franchises 
conferred by its charter. 

The Supreme Court affirmed the decision of the circuit 
court, dismissing the bill, holding that the act of Congress 
of July 24, 1866, so far as it declared that the erection of 
telegraph lines should, as against State interference, be 
free to all who accepted its terms and conditions, and that 
a telegraph company of one State should not, after accept- 
ing them, be excluded by another State from prosecuting 
its business witliin her jurisdiction, was a legitimate regu- 
lation of commercial intercourse among the States, and 
appropriate legislation to execute the powers of Congress 
over the postal service. And further, that the right-of-way 
which the act granted was not limited to such military and 
post roads as were upon the public domain. The Chief 
Justice, who delivered the opinion of the court, said as 
follows : 



228 

'■' It [tlie act of Congvcs-s of 1866] substantially declares, in the interest 
of commerce and the convenient transmission of intelligence from place 
to place by the government of the United States and its citizens, that 
the erection of telegraph lines shall, so far as State interference is con- 
cerned, be free to all who will submit to the conditions imjiosed by 
Congress, and that corporations organized under the laws of one State for 
constructing and operating telegraph lines shall not be excluded by an- 
other from prosecuting their business within its jurisdiction, if they ac- 
cept the terms proposed by the national government for this national 
privilege. To this extent, certainly, the statute is a legitimate regulation 
of commercial intercourse among the States, and is appropriate legisla- 
tion to carry into execution the powers of Congress over the postal ser- 
vice. It gives no foreign corporation the right to enter upon private 
property without the consent of the owner and erect the necessary struc- 
tures for its business, but it does provide that, whenever the consent of 
the owner is obtained, no State legislation shall prevent the occupation 
of post roads for telegraph purposes by such corporations as are Avilling 
to avail themselves of its privileges. 

" It is insisted, however, that the statute extends only to such military 
and post roads as are upon the public domain ; but this, we, think, is not 
so. Tlie language is, ' Through and over any portion of the public do- 
main of the United States, over and along any of the military or post 
roads of the United States which have been or may hereafter be declared 
such by act of Congress, and over, under, or across the navigable streams 
or waters of the United States.' There is nothing to indicate an inten- 
tion of limiting the effect of the words employed, and they are, there- 
fore, to be given their natural and ordinary signification. Read in this 
way, the grant evidently extends to the public domain, the military and 
po.st roads, and the navigable waters of the United States. These are all 
within the dominion of the national government to the extent of the na- 
tional powers, and are, therefore, subject to legitimate congressional regu- 
lation. No (juestiou arises as to the authority of Congress to provide for 
the appropriation of private property to the uses of the telegraph, for no 
such attempt has been made. The use of public projierty alone is granted. 
If private property is required, it must, so far as the present legislation is 
concerned, be obtained by private arrangement with its owner. No com- 
pulsory proceedings are authorized. State sovereignty urider the Consti- 
tution is not interfered with. Only national privileges are granted." 

From this decision Judges Field and Hunt dissented, 
Judge Field delivering a dissenting opinion. In that 
opinion he said as follows : 

" There can be no serious question that the State of Florida possessed 
the absolute right to confer upon a corporation created- by it the exclu- 
sive privilege for a limited period to construct and operate a telegraph 
line within its borders. Its constitution, in existence at the time, em- 



229 

powered the legislature to grant exclusive privileges and franchises to 
private coriiorations for a period not exceeding twenty years. The ex- 
clusivenoss of a jirivilcge often constitutes tlie only inducement for nn- 
dirtakings holding out little ])rospect of inunediate returns. Tlie uncer- 
tainty ol' tlic results of an ciiterjjrise will often deter capitalists, naturally 
cautious and distrustful, from making an investment without some as- 
suraiu-e that in easi^ tlu' Imsiness Itecome prolilalile they shall not en- 
counter the dangei: of its destruction or diniinut i(Ui liy conipetition. It 
has. lluTelore, l)een a common practice in all the States to encourage en- 
terprises having for their ohject the promoticm of the puhlic good, such 
as the construction of bridges, turnpikes, railroads, and canals, by grant- 
ing for limited periods exclusive privileges in connection with them. 
Sucrh grants, so far from being deemed encroachments upon an}' rights or 
powers of the United States, are held to constitute contracts, and to be 
within the protecting clause of the Constitution prohibiting any impair- 
ing of their obligation. 

'"The grant to the complainant was invaded by the subsequent grant 
to the Pensacola and Louisville Railroad Company. If the first grant 
was valid, the second was void, according to all the decisions of this court 
upon the power of a State to impair its grant since the Dartmouth Col- 
lege case. The court below did not hold otherwise, and I do not under- 
.stand that a different view is taken here; but it decided, and this court 
sustains the decision, that the statute making the first grant was void by 
reason of its conflict with the act of Congress of July 24th, 1866. 

" With all deference to my associates, I cannot see that the act of Con- 
gress has anything to do with the case before us. In my judgment, it has 
reference only to telegraph lines over and along military and post roads 
on the public domain of the United States. The title of the act expresses 
its purpose, namely, ' to aid in the construction of telegraph lines and to 
secure to the government the use of the same for postal, military, and 
other purposes.' The aid conferred was the grant of a right of way over 
the public domain ; the act does not propose to give aid in any other way. 
Its language is that any telegraph company organized under the laws of 
a State 'shall have the right to construct, maintain, and operate lines of 
telegraph through and over any portion of the public donuiiu, over and 
along any of the military and post roads which have been, or may here- 
after be, declared such by. act of Congress, and over and across the navi- 
gable streams or waters of the United States.' The portion of the public 
domain which may be thus used is designated by reference to the mili- 
tary and post roads npcju it. Were there any doubt that this is the cor- 
rect construction of the act, the provision which follows in the same sec- 
tion would seem to remove it, namely, that any of the said companies 
shall ' have the right to take and use from such public lands the necessary 
stone, timber, and other materials for its posts, piers, stations, and other 
needful uses in the construction, maintenance, and operation of said lines 
of telegraph, and may pre-empt and use such portion of the unoccupied 



230 

2mbUe lands, subject to pre-emption, through which its said lines of tele- 
graph may be located, as may be necessary for its stations, not exceeding 
forty acres for each station, but such sections shall not be within fifteen 
miles of each other.' In the face of this language, the italics of which 
are mine, there ought not to be a difference of opinion as to the obj ect of 
the act, or as to its construction. The conclusion reached by the major- 
ity of the court not only overlooks this language, but implies that Con- 
gress intended to give aid to the telegraph companies of the country — 
those existing or thereafter to be created — not merely by allowing them 
to construct their lines over and along post roads upon the public lands, 
but also over and along such roads within the States which are not on the 
public lands, where heretofore it has not l>een supposed that it could 
rightfully exercise any power. 

" The only military roads belonging to the United States within the 
States are in the military reservations ; and to them the act obviously 
does not apply. And there are no post roads belonging to the United 
States within the States. The roads upon which the mails are carried by 
parties, under contract with the government, belong either to the States 
or to individuals or to corporations, and are declared post roads only to 
protect the carriei-s ft'om being interfered with, and the mails fi-oni being 
delayed in their transportation, and the postal service from frauds. The 
government has no other control over them. It has no proprietary inter- 
est in them or along them to bestow ujion any one. It cannot use them 
without paying the tolls chargeable to individuals for similar uses. It 
cannot prevent the State from changing or discontinuing them at its 
pleasure; and it can acquire no ownersliip or property interest in them, 
except in the way in which it may acquire any other property in the 
States, namely, by purchase or by appropriation upon making just com- 
pensation,* 

" The i^ublic streets in some of our cities are post roads under the dec- 
laration of Congress;]- and it would be a strange thing if telegraph lines 
could be erected by a foreign corporation along such streets without the 
consent of the municipal and State authorities, and, of course, without 
power on their part to regulate its charges or control its management. 
Yet the doctrine asserted by the majority of the court goes to this length : 
that if the owners of the property along the streets consent to the erec- 
tion of such lines by a foreign corporation, the municipality and the State 
are powerless to prevent it, although the exclusive right to erect them 
maj' have been granted liy the State to a corporation of its own creation. 

" If by making a contract Avith a party to carry the mails over a par- 
ticular road in a State, which thus becomes by act of Congress for that 
purpose a post road. Congress acquires such rights with respect to the 
road that it can authorize corporations of other States to construct along 

* Dickey vs. Turnpike Road Co., 7 Dana (Ky.), 113. 
t Rev. Stats., sec. 3,964. 



231 

and over it a line of telegraph, why may it not authorize them to con- 
strnct alon.L>- the road a railway, or a turnpike, or a caual, or any other 
work which may be used for the promotion of eomnieree? If the au- 
thority exists in tlie one case, I cannot see why it does not equally exist 
ill the other. And if Congress can authorize the corporations of one 
State to construct telegraph lines and railways in anotiier State, it must 
have the right to authorize them to condemn i)rivate pro])erty for that 
purpose. Tlie act under consideration does not, it is true, provide for 
such condemnation, but if the right exist to authorize the construction 
of the lines, it cannot be defeated from the inability of the corporations 
to acquire the necessary property by purchase. The power to grant im- 
l)lies a power to confer all the authority necessary to make the grant ef- 
fectual. It was for a long time a debated question whether the United 
States, in order to obtain property required for their own purposes, could 
exercise the right of eminent domain within a State. It has been decided, 
only within the past two years, that the government, if such property 
cannot be obtained liy i)urchase, may ajipropriate it upon making just 
compensation to the owner,* but never has it been suggested that the 
United States could enable a corporation of one State to condemn prop- 
erty in another State, in order that it might transact its private business 
there. 

" We are not called upon to say that Congress may not construct a rail- 
road as a post road, or erect for postal purposes a telegraph line. It may 
be that the power to establish post roads is not limited to designating the 
roads which shall be used as postal routes ; a limitation which has been 
asserted by eminent jurists and statesmen. f If it be admitted that the 
power embraces also the construction of such roads, it does not follow 
that Congress can authorize the corporation of one State to construct and 
operate a railroad or telegraph line in another State for the transaction of 
private business, or even to exist there, without the permission of the lat- 
ter State. By reason of its previous grant to the complainant Florida was 
incompetent to give such permission to the assignor of the defendant, or 
to any other company, to construct a telegraph line in the county of Es- 
cambia. The act of the State of February 3d, 1874, in the fac." of this 
grant, can only be held to authorize the construction of telegraph lines 
by different companies in other counties. If, therefore, the defendant has 
any rights in that county they are derived solely from the act of Congress. 

"A corporation can have no legal existence beyond the limits of the 
sovereignty which created it. In The Bank of Augusta vs. Earle, it was 
said by this court that ' it must dwell in the place of its creation and 

■■ Kohl vs. U. S., 1 Otto, 8G7. 

t Elliott's Debates, edition of 1836, 433, 487 ; Views of President Mon- 
roe accompanying his veto message of May 4th, 18:2-2; Views of Judge 
^McLean in his dissenting opinion in the Wheeling Bridge Case, 18 How., 
p. 441-2. 



cAuuot migrate to another sovereignty.'* And in Panl vs. Virginia we 
added that 'the recognition of its existence even by other States, and the 
enforcement of its contracts made therein, depend purely upon the com- 
ity of those States, a comity which is never extended where the exist- 
ence of the corporation or the exercise of its powers is prejudicial to their 
interests or repugnant to their policy. Having no absolute right of rec- 
ognition in other States, but depending for such recognition and the en- 
forcement of its contracts upon their assent, it follows, as a matter of 
course, that such assent may be granted upon such terms and conditions 
as those States may think proper to impose. They may exclude the for- 
eign corporation entirely ; they may restrict its business to particular 
localities, or they may exact such security for the performance of its con- 
tracts with their citizens as in their judgment will best promote the pub- 
lic interest. The whole matter rests in their discretion. 'f If, therefore, 
foreign corporations can exist in the State of Florida, and do business 
there by the authority of Congi-ess, it must be because Congress can cre- 
ate such corporations for local business, — a doctrine to which I cannot 
assent, and which to my mind is pregnant with evil consequences. 

" In all that has been said of the importance of the telegraph as a 
means of intercourse, and of its constant use in commercial transactions, I 
fully concur. Similar language maybe used with regard to railways; 
indeed, of the two the railway is much the more important instrument 
of commerce. But it is difficult to see how from this fact can be deduced 
the right of Congress to authorize the corporations of one State to enter 
within the borders of another State and construct railways and telegraph 
lines in its difterent counties for the transaction of local business. The 
grant to the complainant in no way interferes with the power of Congress, 
if it possess such power, to construct telegraph lines or railways for pos- 
tal service or for military purposes, or with its power to regulate com- 
merce between the States. The imputation that Florida designed by the 
grant to obstruct the powers of Congress in these respects, is not war- 
ranted by anything in her statute. A like imputation, and Avith equal 
justice, might be made against ever}' State in the Union which has au- 
thorized the construction of a railway or telegraph line in any of its 
counties, with a grant of an exclusive right to operate the road or line for a 
limited period. It is true the United States, equally with their citizens, 
may be obliged in such cases to use the road or line, but it has not here- 
tofore been supposed that this fact impaired the right of the State to make 
the grant. AVhen the general government desires to transact business 
within a State it necessarily makes use of the highways and modes of 
transit provided under the laws of the State, in the absence of those of 
its own creation. 

" The position advanced, that if a corporation be in any way engaged 
in commerce it can enter and do business in another State without the 

- 13 Peters, 588. t 8 Walhice, 181. 



233 

hitler's coiisciif, is iKivcl :m(l startliu.-i'. T.ct this doctrine be once cs- 

lal.lislivd, aiHltlic -iiratcr part of the trade and coiiinierce of every State 
will soon l)e carried on by corporations created without it. The business 
of the country is to <i hirge extent conducted or controlled by corpora- 
tions, and it may be, as was said by this court in the case referred to 
(Paul vs. Yirjiinia),' of the hijihest puldic; interest that the. number of 
corporations in the State shouhl be liniit<d, that they .should be iviinired 
to ^Uive pulilicity to their trausaelioiis, to submit their affairs to pro]ier 
examination, to be sulijeet to forfeituic of their corponite ri^lits in case 
of mismanagement, and tiiat tlieir oflieers slioidd be held to a strict ac- 
countability for the manner in wliich the business of tlie cori)orations is 
managed, and be lialde to summary removal.' All these guards against 
corporate abuses the State would be incai)able of taking against a corpor- 
ation of another State operating a railway or a telegraph line within its 
borders under the permission of Congress, however extort icniate its charges 
or corrupt its management. The corporation might have a taritF of rates 
and charges prescribed by its charter, which would be beyond the control 
of the State; and thus, by the authority of Congress, a State miglit l)e 
reduced to the condition of having the rates of charges for transportation 
of persons and freight and messages within its borders regulated by an- 
other State. Indeed, it is easy to see that there will remain little of value 
in the reserved lights of the States if the doctrine announced in this case 
be accepted as the law of the land. 

" The power vested in Congress to regulate commerce ' among the sev- 
eral States ' does not authorize any intei'ference with the commerce which 
is carried on entirely within a State. 'Comprehensive as the word 
'among' is.' says Chief Justice Marshall, 'it may very properly be re- 
stricted to that commerce which concerns more States than one,' and 'the 
completely internal commerce of a State, then, may be considered as 
reserved tor the State itself.' That commerce embraces the greater part 
of the business of every State. Every one engaged in the transportation 
of property or ])ersons, or in sending me.s.sages, between diti'erent points 
within the State, not destined to points beyond it, or in the purchase 
or sale of merchandise w ithin its borders, is engaged in its commerce ; and 
the doctrine that Congress can authorize foreign corporations to enter 
within its limits and particijjate in this commerce without the State's 
consent is utterly subversive of our system of local State government. 
State control in local matters would thus be imposible." 

The Ciise of The Union Pacific Raih'oad Conipany vs. 
The Tnited States, and that of Gallatin vs. The Centfal 
Pacific Railroad Comijany, hefore the Snprenic Court at 
the Octol)er term, 1878, were hrought to test tlie validity 
of the fnnding act of Congress of May 7th, 1878, com- 
monlv called the Thurinan act. 



234 

By the first section of the act of Congress of July, 1862, 
certain persons therein designated were created a corpora- 
tion by the name of the Union Pacific Raih'oad Company, 
and authorized to construct and operate a continuous rail- 
road and telegraph line from a designated point on the 
lOOtli meridian of longitude west from Greenwich to the 
western boundary of ]*s"evada Territory, and were invested 
wdth the powers, privileges, and immunities necessary for 
that purpose, and with such as are usually conferred upon 
corporations. 

By subsequent provisions of the act and the amendatory 
act of LS()4, three grants were made to the company thus 
created: a grant of a right-of-way over the pul)lic lands 
of the United States for the road and telegra]:)li line; a 
grant often alternate sections of land on each side of the 
road, to aid in its construction and tliat of the telegraph 
line; and a grant of a certain nundjer of subsidy bonds 
of the United States, each in the sum one thousand dollars, 
payable in thirty years, with semi-annual interest — patents 
for the lands and the bonds to be issued as each twenty 
consecutive miles of the road and telegrajili should be 
completed. 

These grants were made upon certain conditions as to 
the completion of the road and telegrapli line, their con- 
struction and use l)y the government. These conditions 
are expressed in the sixth section, which is as follows: 

"Sec. 6. And be itftuihcr cnnctcd, Tluit the grants aforesaid are made 
upon condition that said company shall pay said bonds at maturity, and 
shall keep said railroad and telegraph line in repair and use, and shall 
at all times transmit dispatches over said telegraph line, and transport 
mails, troops, and munitions of war, supplies, and pnblic stores upon said 
railroad for the government whenever required to do so by any depart- 
ment thereof, and that the government shall at all times have the prefer- 
ence in the use of the same for all the jjurposes aforesaid (at fair and 
reasonable rates of compensation, not to exceed the amounts paid by 
private parties for the same kind of service); and all compensation [by 
the act of 1864 reduced to one-half] tor services rendered for the govern- 
ment shall be applied to the payment of said bonds and interest until 
the whole amount is fully paid. Said companj' mdy also pay the United 



285 

States, wholly or in part, in the same or other bonds, treasury notes, or 
other evidences of debt against the United States, to be allowed at par; 
and alter said road is completed, until said bonds and interest are paid, 
at least live per centum of the net earnings ol' said road shall also bo 
annually applied to the payment thereof." 

By the same act which iticorponited the LT]iion Paciiic 
Company, the Central Pacific Company, a corporation 
existing under the hiws of tlie State of Cahfornia, was 
authorized to construct a raih'oad and telegraph line from 
the Pacific Coast, at or near San Francisco, or the naviga- 
ble waters of the Sacramento Kiver, to the eastern bound- 
ary of California, upon the same terms and conditions in 
all respects as those contained in tlie act for the fonsti'uc- 
tion of the road and telegraph line of tlie Union Pacific, 
and to meet and connect with th;it road and telegraph line 
on tlie eastern boundary of California, Each of the com- 
panies was required to file its acceptance of the con- 
ditions of the act in the Department of the Interior within 
six months after its passage. The Central Pacific was also 
authorized, after completing its road across the State (_)f 
California, to continue the construction of tlie road and 
telegraph through the territories of the United States. 
The numlier of bonds that were to be issued to the com- 
pany were sixteen for each mile, excepting for 450 miles 
between the western base of the Sierra Nevada Mountains 
and the eastern base of the Rocky Mountains. For 150 
miles of that distance double the usual amount, namely, 
thirty-two Jjonds a mile, were to be issued, and for 300 
miles of the most m<_)nntainous and diliicult })orti<)n treble 
the amount a mile, namely, forty-eight, were to be issued. 
These bonds were to constitute a first moi'tgage on the 
whole line of railroad and telegraph, together wdth its 
rolling-stock and property of every kind. 

By the act of 1864 the United States waived its priority 
of lien and allowed the companies to issue their first mort- 
gage bonds on their respective roads to an amount not ex- 
ceeding the amount of the bonds of the United States. 
The act of 1862 provided that in case the companies failed 



236 

to coniply-with the terms and conditions prescribed by not 
completing tlie road and teleo'ra[ih line within a reason- 
able time, or not keeping the same in repair and use, Con- 
gress might pass an act to ensure their speedy completion, 
or to put them in I'cpair and use, and if the road were not 
conqik'ted by tlie first of July, 187G, the whole road and 
propi'rty were to l)e forfeited to the United States. 
Its eighteenth section was as follows : 

"Sec. 18. And be it further cnaeted, Tliat whenever it :ip])ears that the 
net earnings of the entire road and telegraph, including the amount al- 
lowed for services rendered for tlie United States, after deducting all ex- 
penditures — including repairs and the furnishing, running, and managing 
of said road — shall exceed ten per centum upon its cost, (exclusive of the 
five per centum to be paid to the United States,) 'Congress may reduce 
the rates of fare thereon, if unreasonable in amount, and may fix and 
establish the same by law. And the better to acconiplisli the object of 
this act, namely, to promote the public interest and welfare by the con- 
struction of said railroad and telegraph line, and keeping the same in 
working order, and to secure to the government cit all times (but particu- 
larly in time of war) the use and benefits of the same for postal, military, 
and other purposes. Congress may at any time— having due regard for the 
rights of said companies named herein — add to, alter, amend, or repeal 
this act." 

The amendatoiT act closes with a section providing that 
Congress " may at anytime alter, amend, or re[)eal this 
act." 

The two companies — the Union Pacitic and the Central 
Pacitic — l)oth filed their acceptance of tlie conditions of the 
act with the Department of the Interior, and proceeded 
to the construction of their respective roads. These were 
completed several yetirs before the time limited by the act, 
and they have been kept at all times since in repair and 
use. They have also been at the service of the govern- 
.ment whenever required, and no conqilaint of their ineffi- 
ciency has been made. 

Soon after the completion of the roads a question arose 
between the companies and the government, whether 
the companies were bound to pay the interest on the 
bonds of the United States as it became due from year 



t>87 

t(i year, or oiilv :it lln' matiii'ily of llic IxmkIs at tlic omI 
of the thii'ty years, and was eairied lielore llie Court 
of Claims for adjiidiration, and eaiiie, on aiii-eal from its 
division. Iieiore the Supreme C\>urt of tlie I'lnti'd States 
at tlie Cetol)er tei'iii of 1S7'). It was thert' held hy the 
eourt unaniuHaisly that the interest was not payahle hy 
the company until the maturity of the lionds. Judge 
Davis gave the o[iinion of the t-ourt. — (See Cnited States 
vs. The Union Pacilic Kaih'oad, 91 U. S., 72.) 

The same conclusion was reached h}' the Judiciary Com- 
mittee of hoth Houses of Congress. The Committee on 
the Judiciary of the Senate consisted at the time of Sen- 
ators Trumhull. Stewai't, Edmunds, Carpenter, Conkling, 
Thurman, and Kice. 

Xotwithstanding tliere was no complaint against the 
companies that they had not complied in all respects with 
the acts of Congress, or that there was any impairment of 
the value of their property, on the 7th of Ma}", 1878, 
Congress passed tlie funding act, commoidy known as the 
" Thurman act." It is entitled "An act to alter and amend 
the railroad acts of 18(52 and 18(U," giving their titles. 

This act requires that tlie whole amount of compensa- 
tion w'liich ma}' from time to time be due to tlie compa- 
nies for services rendered for the government, shall be 
retained by the United States, one half to be applied to 
the Hquidation of the interest paid by the United States 
on its bonds, and the other half to be turned into a sink- 
ing fund, which the act establishes, in the treasury of the 
United States. The act requires the Secretary of the 
Treasury to invest moneys of that fund in bonds of the 
United States. It also provides that on the 1st of Febru- 
ary of each year, one half of the compensation for ser- 
vices mentioned shall be credited to that limd, and re- 
quires the Central Pacific Company to pay into that fund 
on that day in each year 11,200,000, or so much thereof 
as may be necessary to make the five per centum of the net 
earnings payable to the United States under the act of 



238 

18G2, and llie wliole snm earned as compensation for ser- 
vices, and the snm thus paid to amount in the aii'greo'ate 
to twenty-five per centum of the whole net earnings of tlie 
company. The act requires tlie Union Pacific Company to 
pay $850,000 into the sinking fund on the 1st day of Feb- 
ruary of each year, or so mucli thereof as, with the five per 
centum and compensation for services, and the amount paid, 
shall equal twenty-five per cent, of its net earnings. And 
the act declares that no dividend shall be voted or paid to 
any stockholder or stockholders in either of the compa- 
nies, when the company is in default in respect of the pay- 
ment of the sums required into the sinking fund, or in 
respect of the five per centum of the net eai-nings, or in 
respect of any interest uj)on any debt the lien of which is 
paramount to that of the United States; and any officer or 
person who shall vote, declare, or pay any stockholder of 
said companies any dividend contrary to the provisions 
of the act, and any stockholder who shall receive any, 
shall be hable to the United States for the amount, and 
shall be deemed guilty of a misdemeanor, and, on convic- 
tion, shall be punished by a fine not exceeding ^10,000, 
and by imprisonment not exceeding one year. 

It is the validity of this act, thus changing the conditions 
and obligations of the companies under the acts of 1862 
and 1864, which was considered in the cases mentioned. 
In both cases judgments wei-e given in the com-fs below 
as a matter of form against the companies, and by them 
appeals were taken to the Supreme Court. Tiie questions 
involved were there elaborately and ably argued by dis- 
tinguished counsel. Messrs. Samuel Shellabarger and 
Jeremiah M. Wilson appearing for the Union Pacific; Mr. 
B. H. Hill, of the United States Senate, and Mr. S. AV. 
Sanderson, of California, appearing for the Central Pacific ; 
the Attorney-General, and Mr. George H. Williams, and 
Mr. Edwin J3. Smith, the Assistant Attorney-General, ap- 
pearing for the United States. The Supreme Court affirmed 
the judgment in both cases, holding that the act of May 



289 

7tli, 1S7S, was coiisCitiilional, ami tlial tlic cslaMislniKMit 
of tlio sinkinu- i'lind was a rcasoiiahlo ro<;'iilatioii for the ad- 
luinistralioii of tlu' affairs of \\iv coinitaiiii's and was wai"- 
ranted uink'rtlu' clauses ivserviiii;' to Couutcss the- riLi'lit to 
alt(M- and aninid the acts of 1S(;2 and 1S(;4. 

Jiid.ii-i's Slron--, Bradley, and Field dissenl.Ml from tlio 
judu-nient, and each of tliem read a dissenting- opinion, 
,]\u\'j:c Field eontinin-- himself principally to the case of 
the Central Pacific. His o[)inioii is as follows : 

"The ilocision [rendered] will, in my opinion, tend to ereute insecurity 
in the title to corporate property in the country. It, in eti'ect, determines 
that the general government, in its dealings with the Pacific Kailroad Com- 
panies, is under no legal obligation to fulfill its contracts, and that whether 
it shall do so is a question of policy and not of duty. It also seems to me 
to recognize the right of the government to appropriate by legislative de- 
cree the earnings of those companies without judicial inquiry and deter- 
mination as to its claim to such earnings, thus sanctioning the exercise of 
judicial functions in its own cases. And in respect to the Central Pacific 
Company it asserts a supremacy of the federal over the State government 
in the control of the corporation which, in my judgment, is subversive of 
the rights of the State. I, therefore, am constrained to add some sugges- 
tions to those presented by my associates, Justices Strong and Bradley. 
In what I have to say I shall confine myself chiefly to the case of the 
Central Pacific Company. That company is a State corporation, and is the 
successor of a corporation of the same name, created before the railroad 
acts of Congress were passed, and of four other corporations organized 
under the laws of the State. No sovereign attributes possessed by the 
general government were exercised in calling into existence tlie original 
company, or any of the companies with which it is now consolidated. 
They all derived their powers and capacitiC'^ from the State, and held 
them at its will. \ 

" The relation of the general government to the Pacific companies is 
two-fold: that of sovereign in its own territory, and that of c(mtractor. 
As sovereign, its power extends to the enforcement of such acts and reg- 
ulations by the companies as will insure, in the management of their 
roads, and conduct of their officers in its territory, the safety, convenience, 
and comfort of the public. It can exercise such control in its territory 
over all common carriers of passengers and property. As a contractor, it 
is bound by its engagements equally with a private individual ; it cannot 
be relieved from them by any assertion of its sovereign authority. 

" Its relation to the original Central Pacific Company, and to the present 
company as its successor, in the construction and equipment of its road, 
and its use for public purposes, was and is that of a contractor, and the 



240 

riglits and obligations of both are to be measured, as in the case of sim- 
ilar relations between other parties, b^" the terms and conditions of the 
contract. 

" By the first section of the original railroad act of Congress, passed in 
July, 1862, certain persons therein designated were created a corporation 
by the name of the Union Pacific Railroad Company, and authorized to 
construct and operate a continuous railroad and telegraph line from a 
designated point on the 100th meridian of longitude west from Green- 
Avich to the eastern boundary of Nevada Territory, and were invested 
with the powers, privileges, and immunities necessary for that purpose, 
and with such as are usually conferred upon cori^orations. 

" By subsequent provisions of the act and the amendatory act of 1864, 
three grants were made to the company thits created : a grant of a right- 
of-way over the public lands of the United States for the road and tele- 
graph line ; a grant of ten alternate sections of land on each side of the 
road, to aid in its construction and that of the telegraph line; and a grant 
of a certain number of subsidy bonds of the United States, each in the 
sum of one thousand dollars, payable in thirty years, with semi-annual 
interest — patents for the lands and the bonds to be issued as each twenty 
consecutive miles of the road and telegrai^h should be completed. These 
grants were made upon certain conditions as to the completion of the 
road and telegraph line, their construction and use by the government, 
and their pledge as security for the ultimate payment of the bonds. They 
were the considerations offered by the government to the company for 
the work which it undertook. 

" By the act which thus incorporated the Union Pacific Company, and 
made the grants mentioned, the United States proposed to the Central 
Pacific that it should construct in like manner a railroad and a telegr.iph 
line through the State of California from a point near the Pacific Coast to 
its eastern boundary, upon the same terms and conditions, and after com- 
pleting them across the State, to continue their construction through the 
territories of the United States until they should meet and connect with 
the road and telegraph line of the Union Pacific. 

" They, in eftect, said to the company, that if it would construct a rail- 
road and a telegraph line from the Pacific Ocean ea.stward to a connection 
with the Union Pacific— the road to be in all respects one of first class — 
and keep them in repair, so that they could be used at all times by anj^ 
department of the government for the transmission of despatches and the 
transportation of mails, troops, munitions of war, supplies, and public 
stores, at reasonable rates of compensation, not exceeeding such as were 
charged private persons for similar services, and allow the government at 
all times the preference in the use of the road and telegraph, — they would 
grant the company a right-of-way over the public lands for the construc- 
tion of the road and telegraph line, and grant to it ten alternate sections 
of land on each side of the road, and give it their bonds, each for the sum 
of $1,000, payable thirty years after date, with semi-annual interest, such 



241 

bonds to bo issued at tbe rate ofsixteen, thirty-two, or lbrty-ei<^bt the mih^, 
accordiiif!; to the character of the country' over wliich the road shoiihl be 
constructed ; and would issue patents for the hinds, and the subsidy bonds 
as each twenty consecutive miles of the road and telej^raph should be com- 
pleted in the manner prescribed ; it being agreed that the company should 
jiay the bonds as they should mature, and that for the security of their 
payment they should constitute a second mortgage upon the whole line 
of the road and telegraph, and that one-half of the compensation earned 
for services to the government, and, after the completion of the road, five 
per cent, of its net earnings should be retained and applied to the pay- 
ment of the bonds; and also, that the company should complete the road 
by the first of July, 187G, and keep it in repair and use thereafter, or 
upon failure to do so, that the government might take possession of the 
road and complete it, or keep it in repair and use as the case might be. 
And they farther, in etfect, said that if these terms and conditions were 
satisfactory, the company should file its written acceptance thereof with 
the Secretary of the Interior, within six mouths thereafter ; and that 
thereupon there should be a contract between them. 

" This proposition of the government the Central Pacific accepted, and 
filed its acceptance as required, and thereupon the provisions of the act 
became a contract between it and the United States, as complete and per- 
fect as could be made by the most formal instrument. The United States 
thus came under obligation to the company to make the grants and issue 
the bonds stipulated, upon the construction of the road and telegraph 
line in the manner prescribed. The corporate capacity of the company 
in no respect aftected the nature of the contract, or made it iu anj' par- 
ticular diftereut from what it would have been had a natural person been 
one of the parties. The company was not a creature of the United States, 
and Congress could neither add to nor subtract from its corporate powers. 
The exercise of the right of eminent domain allowed in the Territories 
was not the exercise of a corporate power. That right belongs to the 
sovereign authority, and whoever exercises it does so as the agent of that 
sovereignty. Nor was its character as a State institution changed by the 
fact that it was permitted by Congress to extend its road through the 
territory of the United States. This permission was no more than the 
license which is usually extended by positive agreement, or by comity in 
the absence of such agreement, by one State to the corporations of another 
State, to do business and own property in its jurisdiction. Such license 
is not the source of the corporate powers exercised. Insurance companies, 
express companies, and, indeed, companies organized for almost every 
kind of business, are, by comity, permitted throughout the United States, 
and generall}' throughout the civilized world, to do business, make con- 
tracts, and exercise their corporate powers in a jurisdiction where, iu a 
strict legal sense, they have no corporate existence. The Pacific Mail 
Steamship Company, for example, to take an illustration mentioned bj' 
counsel, is a corporation created under the laws of the State of Xew York, 
IB 



242 

and, like the Central Pacific, has been subsidized by the United States. 
Its ships visit Central America, California, Japan, and China, and in all 
these places it leases or owns wharves and makes and enforces contracts 
necessary to the transaction cf its business, yet no one has ever pretended 
or suggested that it derived any of its corporate powers from the United 
States, or from the authorities of any of the places named. By consent 
of those authorities, expressed in terms, or implied in what is understood 
as their comity, it exercises powers derived solely from the State of New 
York. 

"When, therefore. Congress assented to the extension into the territory 
of the United States of the road which the Central Pacific was authorized 
by its charter to construct in California, it was deemed important for the 
company to obtain also the consent and authority of the State to act with- 
out its limits and assume respon.sibilities not originally contemplated. 
Accordingly, in 1864. the legislature of the State at its second session 
after the adoi)tion of the original railroad act of Congress, in order to en- 
able the company to comply with its provisions and conditions, author- 
ized the company to construct, maintain, and operate the road in the ter- 
ritory lying east of the State, and invested it with rights, privileges, and 
powers granted by the act of Congress, with the reservation, however, 
that the company should be subject to all the Inirs of the State concerning 
railroad and telegraph lines, except that messages and property of the 
United States, of the State, and of the company should have priority of 
transmission and transportation. The extent of the power which was 
thus reserved we shall hereafter consider. It is sufficient at present to 
observe that it was as ample and complete as it is possible for one sov- 
ereignty to exert over institutions of its own creation, and that its exer- 
cise is incompatible with the control asserted by the law of Congress of 
1878, which has given rise to the present suit. 

" The Central Pacific Company having accepted, as already stated, the 
conditions proflered by Congress, proceeded at once to the execution of 
its contract. In the face of great obstacles, doubts, and uncertainties its di- 
rectors commenced and prosecuted the work, and within a period several 
years less than that prescribed, its telegraph line and road were completed, 
the latter with all the appurtenances of a first-class road, and were ac- 
cepted by the government. Patents for the land granted, and the sub- 
sidy bonds mentioned, were accordingly issued to the company. Since 
then the road and telegraph line have been kept in repair and use and the 
government has enjoyed all the privileges in the transmission of des- 
patches over the telegraph, and in the transportation of mails, troops, 
munitions of w ar, supplies, and public stores over the road, which were 
stipulated. There has been no failure on the part of the company to 
comply with its engagements, nor is any complaint of delinquency or ne- 
glect in its action made by the government. The road is more valuable 
now than on the day of its completion ; it has been improved in its rails, 
bridges, cars, depots, turn-outs, machine-shops, and all other appurte- 



24:] 

nances. Its earnin;L>;s havt' been constantly incrca.siiiji;, and it constitutes 
to-day a far bi-tter security to the United States for the nitiinate payment 
of the subsidy bonds than at anj' period since its comph-tion, and to the 
government it has caused, with the connecting road of the Union Pacilh-, 
an immense saving of expense. The records of the ditTerent departments 
show an annual saving, as compared with previous expenditures, in the 
item of transportation alone of the mails, troops, and public stores, of five 
millions, aggregating at this day over fifty millions of dollars. 

" Whilst the company was thus complying in all respects with its en- 
gagements, the act of May 7, 1878, was passed, altering in essential par- 
ticulars the contract of the company and greatly increasing its obligations. 
By the contract only one-half of the compensation for transportation for 
the government is to be retained and applied towards the payment of the 
bonds. Bj' the act of 1878 the whole of such compensation is to be re- 
tained and thus applied. By the contract five per cent, onh' of the net 
earnings of the road are to be paid to the United States to be applied upon 
the subsidy bonds. By the act of 1878 twenty-five per cent, of the net 
earnings are to be thus paid and applied. By the contract the only secu- 
ritj^ Avhich the governmenti had for its subsidy bonds was a second mort- 
gage on the road audits appurtenances and telegraph line ; and the com- 
pany was allowed to give a first mortgage as security for its own bonds, 
issued for an equal amount^ Bj^ the act of 1878 additional security is re- 
quired for the ultimate payment of its own bonds, and the subsidy bonds 
of the United States, by the creation of what is termed :i sinking fund, 
that is, by compelling the company to deposit twelve hundred thousand 
dollars a year in the treasury of the United States, to be held for such 
payment, or so much thereof as may be necessary to make the five per 
cent, net earnings, the whole sum earned as compensation tor services, and 
sufficient in addition to make the whole reach twenty-live per cent, of 
the net earnings. 

'■ It is not material, in the vie^v I take of the subject, whether the de- 
posit of this large sum in the treasury of the creditor be termed a pay- 
ment, or something else. It is the exaction from the company of money 
for which the original contract did not stipulate which constitutes the 
objectionable feature of the act of 1878. The act thus makes a great 
change in the liabilities of the company. Its purpose, however disguised, 
is to coerce the payment of money years in advance of the time prescribed 
by the contract. That such legislation is beyond the power of Congress I 
cannot entertain a doubt. The clauses of the original acts reserving a right 
to Congress to alter or amend them do not, in my judgment, justify the 
legislation. The power reserved under these clauses is declared to be for a 
specific purpose. The language in the act of 1862 is as follows : 'And the 
better to accomi^lish the object of this act, to promote the public interest 
and welfare by the construction of said railroad and telegraph line, and 
keeping the same in working order, and to secure the government at all 
times (but particularly in time of war") the use and benefits of the same 



244 

for postal, military, and other purposes, Congress may at any time — hav- 
ing due regard lor the rights of said companies named herein — add to, 
alter, amend, or repeal this act.' — (Sec. 18.) The language of the amend- 
atory act of 1864 is more general : ' That Congress may at any time alter, 
amend, or repeal this act.' The two acts are to be read together ; they 
deal with the same subject ; and are to be treated as if passed at the same 
time.— (IVescott vs. Railroad Co., 16 AVall., 603.) The limitations, there- 
fore, imposed upon the exercise of the power of alteration and amendment 
in the act of 1862 must beheld to apply to the power reserved in the act 
of 1864. They are not repealed, either expressly or impliedly, by any- 
thing in the latter act. If this be so, the legislation of 1878 can find no 
support in the clauses. The conditions upon which the reserved power 
could be exercised under them did not then exist. The road and tele- 
graph had years before been constructed, and always kept in working 
order ; and the government has at all times been secured in their use and 
benefits for postal, military, and other purposes. 

" But if the reserved power of alteration and amendment be consid- 
ered as freed from the limitations designated, it cannot be exerted to aflfect 
the conti'act so far as it has been executed, or the rights vested under it. 
When the road was completed in the manner prescribed and accepted, 
the company became entitled as of right to the land and subsidy bonds 
stipulated. The title to the land was perfection the issue of the patents ; 
the title to the bonds vested on their delivery. Any alteration of the acts 
under the reservation clauses, or their repeal, could not revoke tlie title 
to the land or recall the bonds or change the right of the company to 
either. So far as these are concerned the contract was, long before the 
act of 1878, an executed and closed transaction, and they were as much 
beyond the reach of the government as any other property vested in pri- 
vate proprietorship. The right to hold the subsidy bonds for the period 
at which they are to run without paying or advancing money on them 
before their maturity, except as originally provided, or furnishing other 
security than that originally stipulated, was, on their delivery, as perfect 
as the right to hold the title to the land patented unencumbered by fu- 
ture liens of the government. Any alteration or amendment could only 
operate for the future and affect subsequent acts of the company ; it could 
have no operation upon that which had already been done and vested. 

" There have been much discussion and great difference of opinion on 
many points as to the meaning and effect of a similar reservation in 
statutes of the States, but on the point that it does not authorize any 
interference with vested rights all the authorities concur. Such was 
the language of Chief Justice Shaw in the case cited from the Supreme 
Court of Massachusetts; and such is the language of Mr. Justice Clifford 
in the cases cited from this court. And such must be the case or there 
would be no safety in dealing with the government where such a clause 
is inserted in its legislation. It could undo at pleasure everything done 
under its authority, and despoil of their property those who had trusted 



245 

to its Hiitli. — (Esspx Co. vs. The Comiuonwealtli, l.'J (jlray, 25:{ ; Miller vs. 
The State, 15 Wall., 4!)8 ; Kolyoke Co. vs. Lyman, Ibid., 52:> ; see also 
Shields vs. Ohio, 95 U. S., 324, and Sage vs. Dillard, 15 B. Monroe, 35.) 

" The ol)j(ct 1)1' a reservation of this kind in acts of incorporation is to 
insure to the governnient control over corporate franchises, rights, and 
privileges which, in its sovereign or legislative capacity, it may call into 
existence, not to interfere with contracts which the corporation created 
by it may make. Such is the purport of our language in Tomlinson vs. 
.Jessup, where we state the object of the reservation to be ' to prevent a 
grant of corporate rights and privileges in a form which will preclude 
legislative interference with their exercise, if the public interest should at 
any time require such interference,' and that ' the reservation atfects the 
entire relation between the State and corporation, and places under legis- 
lative control all rights, privileges, and immunities derived hy Us charter 
directly from the State.'' — (15 Wall., 454.) The same thing we repeated, 
with greater distinctness, in the case of The Railroad Company vs. Maine, 
where we said that by the reservation the State retained the power to 
alter the act incorporating the company, in all particulars constituting the 
ffranf to it of corporate rights, privileges, and immunities ; and that 'the 
existence of the corporation, and its franchises and immunities, derived 
directly from the State, were thus kept under its control.' But, we added, 
that ' rights and interests acquired by the company, not constituting apart 
of the contract of incorporation, stand upon a diiferent footing.' — (96 U. S., 
499.) 

" Now, there was no grant by the United States to the Central Pacitic 
Company, of corporate rights, privileges, and immunities. No attribute 
of sovereignty was exercised by them in its creation. It took its life, and 
all its attributes and capacities, from the State. Whatever powers, rights, 
and privileges it acquired from the United States it took under its con- 
tract with them and not otherwise. The relation between the parties be- 
ing that of contractors, the rights and obligations of both, as already 
stated, are to be measured by the terms and conditions of the contract. 
And when the government of the United States entered into that con- 
tract, it laid aside its sovereignty and put itself on terms of equality with 
its contractor. It was then but a civil corporation, as incapable as the 
Central Pacific of releasing itself from its obligations, or of finally deter- 
mining tiieir extent and character. I; could not, as justly observed by 
one of the counsel who argued this case, ' release itself and hold the other 
party to the contract. It could not change its obligations and hold its 
rights unchanged. It cannot bind itself as a civil corporation, and loose 
itself by its sovereign legislative power.' This principle is aptly ex- 
pressed by the great conservative statesman, Alexander Hamilton, in his 
report to Congress on the public credit, in 1795 : ' When a government,' 
he observes, ' enters into a contract with an individual, it deposes, as to 
the matter of the contract, its constitutional authority, and exchanges 
the character of legislator for that of a moral agent, with the same rights 



246 

and obligations as an individual. Its promises may be justly considered 
out of its power to legislate, unless in aid of them. It is, in theory, im- 
possible to reconcile the two ideas of a promise ichich obliges with a power 
to make a law which can vary the effect of i<.'— (Hamilton's Works, vol. 3, 
p. 518, 519.) 

" When, therefore, the government of the United States entered into 
the contract Avith the Central Pacific, it could no more than a private cor- 
poration or a private individual finally construe and determine the extent 
of the company's rights and liabilities. If it had cause of complaint 
against the company, it could not undertake itself, by legislative decree, 
to redress the grievance, but was compelled to seek redress as all other 
civil corporations are compelled, through the judicial tribunals. If the 
con?i)any was wasting its property, of which no allegation is made, or 
impairing the security of the government, the remedy by .suit was am- 
ple. To declare that one of two contracting parties is entitled, under 
the contract between them, to the iiaynient of a greater sum than is ad- 
mitted to be payable, or to other or greater security than that given, is 
not a legislative function. It is a judicial action; it is the exercise of 
judicial power — and all such power, with respect to any transaction aris- 
ing under the laws of the United States, is vested by the Constitution in 
the courts of the country. 

" In the case of The Commonwealth vs. The Proprietors of New Bedford 
Bridge, a corporation of Massachusetts, the supreme court of that State, 
speaking with reference to a contract between the parties, uses this lan- 
guage : ' Each has equal rights and privileges under it, and neither can 
interpret its terms authoritatively so as to control and bind the rights of 
the other. The Commonwealth has no more authority to construe the 
charter than the corporation. By becoming a party to a contract with its 
citizens, the government divests itself of its sovereignty in respect to the 
terms and conditions of the contract and its construction and interpreta- 
tion, and stands in the same position as a private individual. If it were 
otherwise, the rights of parties contracting with the government would 
be held at the caprice of the sovereign, and exposed to all the risks aris- 
ing from the corrupt or ill-judged use of misguided power. The inter- 
pretation and construction of contracts when drawn in question belong 
exclusively to the judicial department of the government. The legisla- 
ture has no more power to construe their own contracts with their citi- 
zens than those which individuals make with each other. They can do 
neither without exercising judicial powers which would be contrary to 
the elementary principles of our government, as set fortli in the Declara- 
tion of Rights.'— (2 Gray, 350.) 

" In that case the charter of the corporation authorized the building 
of a toll-bridge across a navigable river, with two suitable draws at least 
thirty feet wide. A subsequent act required draws to be made of a greater 
width ; but the court held that the question whether the draws already 
made were suitable, and constructed so as not iinreasonable or unnec- 



247 

essarily to obstruct or iinpodc public nuvigatiou, was not u question to be 
determined by the legislature, or by the cor])oration, but by the courts. 
It was a (luestion whicii could not l)e authoritatively determined by either 
party so as to control and liiiid tlie other, 'Like all other matters in- 
volvinjj; a controversy concerninii' pul)licduty and pri\ate rights,' said the 
court, 'it is to be adjusted and settled in the regular tribunals, where 
questions of law and fact are adjudicated on fixed and established prin- 
ciples, and according to the forms and usages best adapted to secure the 
imi)artial administration of justice.' In the case at bar, the government, 
by the act of 1878, undertakes to decide authoritatively what the obliga- 
tions of the Central Pacific are, and in eftect declares that if the direc- 
tors of the company do not respect its construction, and obey its man- 
dates, founded upon such construction, they shall be subject to fine and 
imprisonment. 

" Tlie distinction between a judicial and a legislative act is well defined. 
The one determines what the law is, and what the rights of parties are, 
with reference to transactions already had ; the other prescribes what the 
law shall be in future cases arising under it. Wherever an act under- 
takes to determine a question of right or obligation, or of property, as the 
foundation upon which it proceeds, such act is to that extent a judicial 
one, and not the proper exercise of legislative functions. Thus an act of 
the Legislature of Illinois authorizing the sale of the lands of an intes- 
tate, to raise a specific sum, to pay certain parties their claims against the 
estate of the deceased for moneys advanced and liabilities incurred, was 
held unconstitutional on the ground that it involved a judicial deter- 
mination that the estate was indebted to those parties for the moneys ad- 
vanced and liabilities incurred. The ascertainment of indebtedness from 
one party to another, and a direction for its payment, the court consid- 
ered to be judicial acts whicli could not be performed by the legislature. — 
(3 Scam., 238.) So also an act of the Legislature of Tennessee authoriz- 
ing a guardian of infant heirs to sell certain lands of which their ances- 
tors died seized, and directing the proceeds to be applied to the payment 
of the ancestor's debts, was, on similar grounds, hehl to be unconstitu- 
tional. — (Jones vs. Perry, 10 Yerger, 59.) Tested by the principles thus 
illustrated the act of 1378 must be held in many ways to transcend the 
legislative power of Congress. 

" I cannot assent to the doctrine which would ascribe to the federal 
government a sovei-eign right to treat as it may choose corporations with 
which it deals, and would exempt it from that great law of morality 
which should bind all governments, as it binds all individuals, to do 
justice and keep faith. Because it was deemed important, on the adop- 
tion of the Constitution, in the light of wdiat was known as tender laws, 
appraisement laws, stay laws, and installment laws of the States, which 
Story says had prostrated all private credit and all private morals, to in- 
sert a clause prohibiting the States from passing any law impairing the 
obligation of contracts, and no clause prohibiting the federal government 



248 

from like legislation is found, it is argued that no such prohibition upon 
it exists. 

" ' It is true,' us I had occasion to observe in another case, ' there is no 
provision in the Constitution forbidding in express terms such legislation. 
And it is also true that there are express powers delegated to Congress, 
the execution of which necessarily operates to impair the obligation of 
contracts. It was the object of the framers of that instrument to create 
a national government, competent to represent the entire country in its 
relations with foreign nations and to accomplish by its legislation measures 
of common interest to all the people, which the several States in tlieir in- 
dependent capacities were incapable of effecting, or if capable, the execu- 
tion of which would be attended with great difficulty and embarrassment. 
They, therefore, clothed Congress Avith all the powers essential to the 
successful accomplishment of these ends, and carefully withheld the 
grant of all other powers. Some of the powers granted, from their very 
nature, interfere in their execution with contracts of parties. Thus war 
suspends intercourse and commerce between citizens or subjects of bellig- 
erent nations; it renders during its continuance the performance of con- 
tracts previously made, unlawful. These incidental consequences were 
contemplated in the grant of the war power. So the regulation of com- 
merce and the imposition of duties may so affect the prices of articles 
imported or manufactured as to essentially alter the value of previous 
contracts respecting them; but this incidental consequence was seen in 
the grant of the power over commerce and duties. There can be no valid 
objection to laws passed in execution of express powers, that consequences 
like these follow incidentally from their execution. But it is otherwise 
when such consequences do not follow incidentally, but are directly en- 
acted.' 

" ' The only express authority for any legislation affecting the obligation 
of contracts is found in the power to establish a uniform system of bank- 
ruptcy, the direct object of which is to release insolvent debtors from 
their contracts upon the surrender of their property.' — (12 Wallace, 663.) 
From this express grant in the case of bankrupts the inference is deduc- 
ible that there was no general power to interfere with contracts. If such 
general power existed there could have been no occasion for the delega- 
tion of an expre.ss power in the case of bankrupts. The argument for the 
general power from the absence of a special prohibition proceeds upon a 
misconception of the nature of the federal government as one of limited 
powers. It can exercise only such powers as are specifically granted or 
are necessarily implied. All other powers, not prohibited to the States, 
are reserved to them or to the people. As I said in the case referred to, 
the doctrine that where a power is not expressly forbidden it may be ex- 
ercised, would change the whole character of our government. Accord- 
ing to the great commentators on the Constitution, and the opinions 
of the great jurists, who have studied and interpreted its meaning, the 
true doctrine is, that where a power is not in terms granted, and is not 



249 

necessary or proper for the exercise of ;i power tlins granted, it does not 
exist. It would not be pretended, for example, had there been no amend- 
ments to the Constitution as originally adopted, that Congress could have 
passed a law respecting an establishment of religion or prohibiting the 
flee exercise thereof or abridging the freedom of speech, or the right of 
the people to assemble and petition for a redress of grievances. The 
amendments prohibiting the exercise of any such power were adopted in 
the language of the preamble accompanying them, when presented to 
the States, ' in order to prevent misconception or almse' of the jtowers of 
the Constitution. 

" Independent of these A'iews, there are many considerations whi(;h 
lead to the conclusion that the power to impair contracts, by direct action 
to that end, does not exist with the general government. In the tirst 
place, one of the objects of the Constitution, expres.sed in its ju-eamble, 
was the establishment of justice, and what that meant in its relations to 
contracts is not left, a-s was justly said by the late Chief .Tustice, in Hep- 
burn A's. Griswold, to inference or conjecture. As he observes, at the 
time the Constitution was undergoing discussion in the Convention, the 
Congress of the Confederation was engaged in framing the ordinance for 
the government of the Northwestern Territory, in which certain articles 
of compact were established between the people of the original States and 
the people of the territory, for the purpose, as expres.sed in the instru- 
ment, of extending the fundamental principles of civil and religious lib- 
erty, upon which the States, their laws and constitutions, were erected. 
By that ordinance it was declared, that in the just preservation of rights 
and property, ' no law ought ever to be made, or have force in the said 
territory, that shall, in any manner, interfere with or affect private con- 
tracts or engagements bona fide and without fraud previousl}' formed.' 
The same provision, adds the Chief Justice, found more condensed ex- 
pression in the prohibition upon the States against imjiairing the obliga- 
tion of contracts, which has ever been recognized as an efficient safeguard 
against injustice, and. though the prohibition is not applied in terms to 
the government of the United States, he expressed the opinion, speaking 
for himself and the majority of the court at the time, that it was clear 
' that those who framed and those who adopted the Constitution, intended 
that the spirit of this prohibition should pervade the entire body of legis- 
lation, and that the justice which the Constitution was ordained to estab- 
lish was not thought by them to be compatible with legislation of an op- 
posite tendency.' — (8 Wallace, 623.) 

"Similar views are found expressed in the opinions of other judges of 
this court. In Calder vs. Bull, which was here in 1798, Mr. Justice Chase 
said, that there were acts which the federal and State legislatures could 
not do without exceeding their authority, and among them he mentioned 
a law which punished a citizen ibr an innocent act ; a law that destroyed 
or impaired the lawful private contracts of citizens ; a law that made a 
man judge in his own case ; and a law that took the property from A and 



250 

gave it to P>. ' It is against all reason and justice,' he added, ' for a peo- 
ple to entrust a legislature witn such powers, and, therefore, it cannot be 
presumed that they have done it. They may command what is right and 
prohibit what is wrong ; but they cannot change innocence iuto guilt or 
punish innocence as a crime, or violate the right of an antecedent lawful 
private contract, or the right of private property. To maintain that a 
federal or State legislature possesses such powers if they had not been 
expressly restrained, would, in my opinion, be a political heresy alto- 
gether inadmissible in all free republican governments.' — (3 Dallas, 388.) 

" In Ogden vs. Saunders, Avhich was before this court in 1827, Mr. Jus- 
tice Thompson, referring to the clauses of the Constitution prohibiting 
the State from passing a bill of attainder, an ex post facto law, or a law 
impairing the obligation of contracts, said : ' Neither provision can strictly 
be considered as introducing any new principle, but only for greater 
security and safety to incorporate into this charter provisions admitted 
by all to be among the first principles of our government. No State 
court would, I presume, sanction and enforce an ex post facto law, if no 
such prohibition was contained in the Constitution of the United States; 
so, neither would retrospective laws, taking away vested rights, be 
enforced. Such laws are repugnant to those fundamental principles 
upon which every just system of laws is founded.' 

"In the Federalist, Mr. Madison declared that laws impairing the 
obligation of contracts were contrary to the first principles of the social 
compact and to every principle of sound legislation ; and in the Dart- 
mouth College case Mr. Webster contended that acts, which were there 
held to impair the obligation of contracts, were not the exercise of a 
power properly legislative, as their object and effect was to take away 
vested rights. 'To justify the taking away of vested rights,' he said, 
' there must be a forfeiture, to adjudge upon and declare which is the 
proper province of the judiciary.' Surely the Constitution would have 
failed to establish justice had it allowed the exercise of such a dangerous 
power to the Congress of the United States. 

" In the second place, legislation impairing the obligation of contracts 
impinges upon the provision of the Constitution which declares that no 
one shall be deprived of his property without due process of law ; and 
that means by law in its regular course of administration through the 
courts of justice. Contracts are property, and a large portion of the 
wealth of the country exists in that form. Whatever impairs their value 
diminishes, therefore, the property of the owner, and if that be effected 
by direct legislative action operating upon the contract, forbidding its 
enforcement or transfer, or otherwise restricting its use, the owner is as 
much deprived of his property without due process of law as if the con- 
tract were impounded, or the value it represents were in terms wholly or 
partially confiscated. 

" In the case at bar the contract with the Central Pacific is, as I have 
said, changed in essential particulars. Tlie company is compelled to ac- 



251 

cept it in its cluingcd form, and by Icgi.slutivc decree, without the inter- 
vention of the courts, that is, witliout dvie process of law, to pay out of 
its earnings each year to its contractors, the United States, or deposit with 
them, a sum that may amount to twelve hundred thousand dollars, and 
this, twenty years before the debt to w hicli it is to be applied bcconics 
due and payable by the company. If tliis taking of the earnings of the 
company and keeping them from its use during these twenty years to 
come is not depriving the company of its i)roperfy. it would be difficult 
to give any meaning to the provision hi' the Constitution. It will only be 
necessary hereafter to give to the seizure of another's property or earnings 
a new name— to call it the creation of a sinking fund, or the providing 
against the possible wastefulness or improvidence of tlie owner— to get 
rid of the constitutional restraint. To my mind the evasion of 1 hat ( lausc, 
the frittering away of all sense and meaning to it, arc iusupcralilc objec- 
tions to the legislation of Congress. Where contracts are impaired, or 
when operating against the government are sought to be evaded and 
avoided by legislation, a blow is given to the security of all projjorty. 
If the government will not keep its faith, little better can be exiiected 
from the citizen. If contracts are not observed, no property will in the 
end be respected; and all history shows that rights of person are unsafe 
where property is insecure* Protection to one goes with protection to 
the other ; and there can be neither prosperity nor progress where this 
foundation of all just government is unsettled. ' The moment,' said the 
elderAdams, 'the idea is admitted into society that property is not as 
sacred as the laws of God, and that there is not a force of law and public 
justice to protect it, anarchy and tyranny commence.' 

" I am aware of the opinion which prevails generally that the Pacific 
railroad corporations have, by their accumulation wealth, and the num- 
bers in their employ, become so powerful as to be disturbing and danger- 
ous influences in the legislation of the country ; and that they should, 
therefore, be brought by stringent measures into subjection to the State. 
This may be true ; I do not say that it is not ; but if it is, it furnishes no 
justilication for the repudiation or evasion of the contracts made with 
them by the government. The law that protects the wealth of the most 
powerful, protects also the earnings of the most humble; and the law 
which would confiscate the property of the one would in the end take the 
earnings of the other. 

" There are many other objections to the act of Congress besides those 
I have mentioned— each to my mind convincing — but why add to what 
has already been said. If the reasons given will not convince, neither 
would any others which could be presented. I w ill, tlu-refore, refer only 
to the interference of the law with the rights of the State of California. 

" The Central Pacific being a State corporation, the law creating it is, by 
the constitution of California, subject to alteration, amendment, and re- 
peal by its legislature at any time— a power which the legislature can 
neither abdicate nor transfer. In its assent given to the company to ex-. 



252 

tend its road into the territory of the United States— the general govern- 
ment having authorized the extension— the legislature reserved the tome 
control which it possesses over other railroad and telegraph companies 
created hy it. That control under the new constitution, goes, as is claimed, 
■ to tlxe extent of regulating the fares and freights of the company, thus 
linaiting its income or earnings; and of supervising all its husiness, even 
to the keeping of its accounts, making disobedience of its directors to the 
regulations established for its management punishable by fine and im- 
prisonment ; and the legislature may impose the additional penalty ol" a 
forfeiture of the franchises and privileges of the company. The law in 
existence when the corporation was created, and still in force, requires the 
creation of a sinking fund by the company to meet its bonds, and under 
it large sums have been accumulated for that purpose, and still further 
sums must be raised. In a word, the law of the State undertakes to con- 
trol and manage the corporation, in all particulars required for the ser- 
vice, convenience, and protection of the public ; and can there be a doubt 
in the mind of any one that over its own creations the State has, within 
its own territory, as against the United States, the superior authority ? 
Yet the power asserted by the general government in the passage of the 
act of 1878 would justify legislation affecting all the affairs of the com- 
pany, both in the State and in the Territories of the United States. It 
could treble the amount of the sum to be annually deposited in the sink- 
ing fund ; it could command the immediate deposit of the entire amount 
of the ultimate indebtedness ; it could change the order of the liens held 
by the government and the first mortgage bondholders ; it could extend 
the lien of the government beyond the property to the entire income of 
the company, and, in tact, does so by the act in question (sec. 9) ; it could 
require the transportation for the government to be made without com- 
pensation, and it could subject the company to burdens which, if antici- 
pated at the time, would have prevented the construction of the road. 
A power thus vast, once admitted to exist, might be exerted to control the 
entire affairs of the company, in direct conflict with the legislation of the 
State ; its exercise would be a mere matter of legislative discretion in 
Congress. Yet it is clear that both governments cannot control and man- 
age the company in the same territory, subjecting its directors to fine and 
imprisonment for disobeying their regulations. Under the Constitution 
the management of local affairs is left chiefly to the States, and it never 
entered into the conception of its framers that under it the creations of 
the States could be taken from their control. Certain it is that over no 
subject is it more important for their interests that they should retain the 
management and direction tlian over corporations brought into existence 
by them. The decision of the majority goes a great way— further, it ap- 
pears to me, than any heretofore made by the court — to weaken the au- 
thority of the States, in this respect, as against the will of Congress. Ac- 
cording to n\y understanding of its scope and reach, the United States 
have only to make a contract with. a State corporation, and a loan to it. 



to onst tlic .jurisdiction of'tlic F^tate, and ])laoe flic corporation under tlicir 
direction. It would seem plain that if Ic-jislation. taking institutions of 
the State from its control, can be sustained l)y this court, the <iovcnHnent 
will drift from the limited and well-guarded system estahlished hy our 
fathers into a centralized and consolidated governmonl." 



A letidiiig- JDiii'iial of California thus speaks of the in- 
vasion made by the (U-eision of the eonrt npon the riu'hts 
of the State of C'ahhnniia, to whirh the (hssentinjj,- o[)ini()n 
refers : 

"The position taken l)y him [Judge Field] npon the question of con- 
"■ressional invasion of State sovereignty is one which would l)eyond doubt 
luive ranged the framers of the United States Constitution upon his side, 
and it includes a revelation of dangers and perplexities which sober men 
will do well to heed, and which it behooves every earnest politician to 
study seriously, because of the certainty of the approaching importance 
of this aud similar questions, in both State and national alitairs. The ar- 
gument of Judge Field in regard to the peculiar relations existing be- 
tween the Central Pacific, the State, and Congress, ought indeed to be 
mastered thoroughly by all who desire to keep themselves informed con- 
cerning the nature of the movements by which the original character -of 
the union between the States is being changed, and a centralized govern- 
ment is being gradually erected upon the wrecks of State sovereignty, 
alreadj' little more than an empty nanie. 

" In the first place. Judge Field points out that the Central Pacific was 
a creature of the State, and not of the United States. It draws its pow- 
ers and its life from California, not from Congress. ' There was no grant 
by the United States to the Central Pacific Company of corporate rights, 
privileges, and immunities. No attribute of sovereignty was exercised 
by them in its creation. It took its life and all its attributes and ca- 
pacities from the State. Whatever power, rights, aud privileges it ac- 
quired from the United States it took under its contract with them, and 
not otherwise.' This is the key to the argument. Here is a distinct 
exercise of State sovereignty, not lapsed, or dormant, or inchoate, but in 
active, present operation. At every step this State sovereignty is affirmed 
and acted upon. It is made the basis of legislation. It is made the basis 
for radical changes in the organic law. The right of the State to deal 
with the corporations it has created, and whose charters it can ' alter, 
amend, or repeal ' at will, does not seem a question concerning which 
there can be two opinions. And yet this very question has been raised 
in the decision of the Supreme Court on the Thurman act, and not only 
raised, but settled adversely to the right of the State to control its own 
creatures. As the State has nevertheless undertaken to exercise such con- 



254 

trol very vigorously, and as during the coming session ol' the legislature 
that right must be still further exerted, it is evident that the importance 
of this whole question is very considerable. And now let us hear Judge 
Field upon this topic somewhat further : ' The Central Pacific being a 
State corporation, the law creating it is, by the constitution of Califor- 
nia, subject to alteration, amendment, and repeal by its legislature at 
any time— a power which the legislature can neither abdicate nor trans- 
fer. In its assent given to the company to extend its road into the ter- 
ritory of the United States — the general government authorizing the ex- 
tension — the legislature reserved the same control which it possesses 
over other railroad and telegraph companies created by it. That con- 
trol, under the new Constitution, goes, as is claimed, to the extent of 
regulating the fares and freights of the company, thus limiting its in- 
comes or earnings ; and of supervising all its business, even to the kaep- 
ing of its accounts, making disobedience of its directors to the regula- 
tions established for its management punishable by tine and imprison- 
ment ; and the legislature may impose the additional penalty of a for- 
feiture of the franchises and privileges of the company.' 

" Here are two distinct and necessarily antagonistic authorities set up, 
both claiming control of the .same corporation. And it is perfectly evi- 
dent that the assumption by Congress of the right to interfere with a 
creation of the State involves the assumption of a right to carry the .same 
interference to such lengths as may destroy the last pretence of State 
sovereignty. In this case Congress interferes to compel the payment of 
a debt before it is due, in open violation of a solemn contract. Having 
undertaken to perpetrate an act of such marked injustice towai'd the cor- 
poration, it is at least possible that so reckless and irresponsible a body 
maj^ err as widely on the other side at some future time. For if Con- 
gress can supersede the rights of the State, it certainly can ignore the 
interests of the State ; and the disposition to do the tir.st implies no serious 
disinclination to proceed to the second. Congress in short can, under the 
ruling of the court, so alter the conditions of the Central Pacific Company 
by imposts and burdens, that it shall be disabled either from meeting its 
obligations or operating its roads ; and it will be in vain for the State to 
protest against this legislation. Indeed, it becomes a highly important 
question whether, under this decision, the ensuing legislature can venture 
to handle the railroad question at all, for Congress has in practice formally 
assumed control of the subject. As Judge Field says : ' Under the Consti- 
tution the management of local affairs is left chiefly to the States, and it 
never entered into the conception of its framers that under it the creations 
of the States could be taken from under their control. Certain it is that 
over no subject is it more important for their interests that they should 
retain the managemt5nt and direction than over corporations brought into 
exi.stence ))y them. The decision of the majority goes a great way — 
further, it appears to me, than any heretofore made by the court — to 
weaken the authority of the States, in this respect, as against the will 



of Congress. According to my lUKkTstaiuling of its .-coix' and roacli, 
tlie United States has only to make a contniet with a State corporation 
and a loan to it, to oust the jurisdiction of the State and place the cor- 
p(n-ation under their their direction.' It is searcejy pdssihle to eseajic 
from this conclusion, or to perceive where the ri.nht of cnugressujual in- 
teiferenee can he ehecked, after going so far. Nor is this the only serious 
viow of the matter imiiosed on the State. For what Congress has 
done is practically to undertake the management of the railroads of Cal- 
ifornia, and the conflict of authority here decided in favor of Congress has 
implications which will not improbahly cause great emharra.ssnu'nt in the 
near future. The Supreme Court says that Congress has the right to alter, 
amend, or repeal State charters. It does not make this claim in terms, 
but this is the actual outcome of its definition of State authority. The 
State, therefore, is thrust aside, and can no longer control the corporations 
it has endowed with life and functions. It cannot hope to exercise sover- 
eignty over agencies which are already claimed hy a higher jurisdiction. 
It is clearly impossible that the corporations concerned can pay allegiance 
equally to the State and to Congress. The mere suggestion of such a 
divided or duplicated sovereignty must be fatal to the tinancial standing 
of the enterprise so fixed between the upper and the nether millstone. 
Since either power may ruin the corporation, and since both powers claim 
the right to confiscate its property for disobedience of orders, the situa- 
tion is sufficiently difficult. The powers of the State are certainly 

circumscribed and diminished very seriously by this decision, and, in the 
words of Judge Field, ' It would seem plain that if legislation, taking in- 
stitutions of the State from its control, can be sustained by this court, 
the government will drift irom the limited and well-guarded system es- 
tablished by our fathers, into a centralized and consolidated govern- 
ment.' If this is States rights doctrine, it is a kind of States rights doc- 
trine which the best friends of republican government ought to subscribe 
to, for it is founded upon principles the neglect or abandonment of which 
must destroy the firmest supports of popular liberty, and prepare the way 
for the advent of a centralized despotism." 

The Thurman act, besides being open to the objections 
thus stated, operates with special hardship upon the people 
of the Pacific Coast, as the increased charges for transpor- 
tation which the Central Pacific will he required to make 
to meet the annual payment into the treasury of the 
United States of the sum of $1,2()0,000 many years before 
it is due, will fall prim-ipally upon them. This is a cir- 
cumstance whicli seems to have escaped the attention of 
the advocates of the measure. 



256 

Other Caseh. 

The opinions from which the quotations above are made 
have attracted more general attention than anv others writ- 
ten by Judge Field, yet they constitute a very small por- 
tion of his labors in the Supreme Court. His career on the 
bench covers many years, and in a large number of cases, 
of great importance, he has been called upon either to speak 
for the court or to express his dissent from its views. The 
questions involved in these cases have been of infinite 
variety, as one may suppose from the multitude of subjects 
upon which litigation can arise in the federal courts. It 
would occupy many pages to give an intelligent statement 
of them. They relate to many matters of a public charac- 
ter, as well as those of mere private concern; to treaties 
and international disputes; to foreign commerce and com- 
merce between the States; to the power of taxation of the 
States and of the general government, and the limits upon 
both, as atiected by contract and residence; to the pubHc 
lands of the United States and the cessions made by Congress 
to the different States, and to public institutions; to the law 
governing the right to the use of water by miners and 
settlers on the public lands; to the jurisdiction of the 
admiralty; to the debts of cities, counties, and States; to 
corporations of every kind, but especially to railroad cor- 
porations and grants to them; to subjects of prize and of 
revenue; to acts of the military and naval forces; and to 
a great number of other matters arising in a highly civil- 
ized community having commercial and diplomatic rela- 
tions with the rest of tlie world. 

The following are some of the cases : 

The Aloses Taylor, 4 Wallace, 411. 
The Siren, 7 Walhice, 152. 
The Iron-clad Atlanta, 3 Wallace, 425. 
The Daniel Ball, 10 Wallace, 557. 
Welton vs. State of Missouri, 1 Otto, 275. 
Sherlock vs. Allino:, 3 Otto, 99. 



257 

State Tax on Foroigu-held Bonds, 15 Wallace, 300. 

Low vs. Austin, 18^ Wallace, 29. 

Tai-ble's Case, 18 Wallace, 897. 

Trebilcock vs. Wilson, 12 Wallace, 087. 

Carlisle vs. United States, 16 Wallace, 147. 

Horn vs. Lockliart, 17 Wallace, 570. 

Boyd vs. Alabama, 4 Otto, 645. 

Xew Orleans vs. Clark, 5 Otto, 644. 

United States vs. Fox, 5 Otto, 670. 

Railroad Co. vs. Whitton, 18 Wallace, 270. 

Morgan vs. Louisiana, 3 Otto, 217. 

Clunnberlain vs. St. Paul & Sioux City R. R. Co., 2 Otto, 

299. 
Farnsworth vs. Minnesota & Pacific R. R. Co., 2 Otto, 49. 
Clark vs. Iowa City, 20 Wallace, 583. 
Weber vs. Tbe board of Harbor Commissioners, 18 

Wallace, 57. 
Telegraph Co. vs. Davenport, 7 Otto, 369. 
The Xitro-Glycerine Case, 15 Wallace, 524. 
The Confederate Note Case, 19 Wallace, 548. 
Boom vs. Patterson, 8 Otto, 403. 
Cromwell vs. County of Sac, 4 Otto, 351. 
Cromwell vs. County of Sac, 6 Otto, 51. 
Russell vs. Place, 4 Otto, 606. 
Bradley vs. Fisher, 18 Wallace, 835. 
Ex-parte RobVnson, 19 Wallace, 505. 
Atcliison vs. Peterson, 20 Wallace, 507. 
Basey vs. Gallagher, lb., 670. 
Jenn'ison vs. Kirk, 8 Otto, 458. 
Beard vs. Federy, 8 Wallace, 478. 
Hornsby vs. United States, 10 Wallace, 224. 
Gibson vs. Chouteau, 13 Wallace, 92. 
Henshaw vs. Bissell, 18 Wallace, 255. 
Shulenberg vs. Ilarriman, 21 Wallace, 44. 
Langdeau vs. ILmes, 21 Wallace, 521. 
TheVosemite Valley Case, 15 Wallace, 77. 
Shepley vs. Cowan, 1 Otto, 830. 
17 



258 

Beecher vs. AVetlierljy, 5 Otto, 517. 
Grisar vs. McDowell, 6 Wallace, 803. 
Stark vs. Starrs, 6 Wallace, 402. 
Galpiii vg. Page, 18 Wallace, 850. 
Pen n oyer vs. Neft', 5 Otto, 714. 
Windsor vs. McVeigh, 3 Otto, 274. 

The writing of opinions is Init a small part of the lahors 
of a judge of the Supreme Court. He is obliged to study 
and master every case which comes before the court and 
give his judgment upon it. About three hundred cases are 
thus considered by him every session, which usually lasts 
seven months. Some of the cases are decided without 
written opinions being given, some by a divided court, 
and those in which opinions are written are distributed 
among nine judges. The great labor of each judge con- 
sists in mastering the cases before the court so as to be able 
to give an intelligent judgment. 



259 



KOTE, 



Tlie precediuii," [)aii'<».s wore priiittMl a yau' ago, l)ut their 
piil)lication ^va^^ a'.'terwai'ds abandoned. Since then many 
tViends ot M udge Field in C'ahl'ornia- have expressed a de- 
sire that some account of other decisions of his should he 
added, and the whole published in a painphlet form. The 
other decisions particularly mentioned are those relating to 
inter-state com'merce, taxation by the general and State 
governments, the trust character of directors of corpora- 
tions, the use of running waters on the public lands, and 
various subjects of interest arising in the Circuit Court 
of the United States for California, such as the Pueblo of 
San Francisco and legislation of the State against the 
Chinese. In comphance with this desire the following 
pages liave been prepared. To them is added a notice of 
Ins action in the Electoral Commission of 1876, of which 
he was ;i member. 

JrxE, 1881. 



Inter-State Commerce. — Cases relatin(! to this 

SUBJECT. 

The Constitution of the United States vests in Congress 
the power " to regulate commerce with foreign nations 
and among the several States, and with the Indian tribes ;" 
and no provision of that instrument is of more importance, 
or has been the subject of greater discussion. The mean- 
ing of the term commerce, and how far the grant of power 
to regulate it is exclusive of State interference, how far, if 
at all, it is concurrent with the authority of the State, and 
what is the effect of non-action by the general government 
with respect to any particular subject of commerce, have 
all been the occasion of earnest discussion and of wide 
18 



260 

diftei-ences of opinion. The earlier judges of the Supreme 
Court disagreed in tlieir views. It is only of late years 
that there has been any concurrence on the subject among 
the members of that Court. Important opinions leading 
to this uniformity have been rendered by nearly all of 
the judges. It is the object of this compilation to refer 
only to those delivered by Judge Field. 

In Welton vs. The State of Missouri, (1 Otto, 275,) the 
Court, at its October term of 1875, was called upon to con- 
sider the validity of a statute of Missouri discriminating in 
favor of goods, wares, and merchandise which were the 
growth, product, or manufacture of the State, and against 
those which w^ere the growth, product, or manufacture of 
other States or countries, in the conditions upon which 
their sale could be made by traveling dealers. One Wel- 
ton was a dealer in sewing machines which were manu- 
fectured without the State of Missouri, and went from 
place to place in the State selling them without a license 
for that purpose. For this olfence he was indicted and 
convicted in one of the Circuit Courts of the State, and 
was sentenced to pay a fine of fifty dollars, and to be com- 
mitted until the same was paid. On appeal to the Su- 
preme Court of the State the judgment was affirmed. 

The statute under which the conviction was had declared 
that whoever dealt in the sale of goods, w^ares, or mer- 
chandise, except books, charts, maps, and stationery, which 
were not the growth, produce, or manufacture of the State, 
by going from place to place to sell the same, should be 
deemed a pedlar; and tlien enacted that no person should 
deal as a pedlar without a license, and prescribed the rates 
of charge for the licenses, these varying according to the 
manner in which the business was conducted, whether by 
the party carrying the goods himself on foot, or by the 
use of beasts of burden, or by carts or other land carriage, 
or by boats or other river vessels. Penalties were im- 
posed for dealing without the license prescribed. Iso li- 
cense was required for selling in a similar way — by going 



•261 

IVoin jihu'O to place in the State n'oods whieli were the 
gi'owth, prodiiet. or inanulaelure of the State. 

The lieeiise ehari^e exacted was souu^ht to ])e runintaincd 
as a tax upon a eaUi'iu'. Tt wa> helil to l)e such a tax l)_v 
tlie Siii>renie Court of the State; a calHiiu-, said tlie Court, 
whicli was limited to the sah' of merchandise not the 
UTowth or product of the State. To this view the Supremo 
Court of tlie Unitt'd States, speakinu' throuu'h . I udi^e Field, 
said : 

" The general power of tlie State to impose taxes in the way of licenses 
upon all pursuits and occupations within its limits is admitted, hut like 
all other powers must be exercised in subordination to the requirements 
of the federal Constitution. Where the business or occupation consists 
in the sale of goods, the license tax required for its pursuit is in eflect a 
tax upon the goods themselves. If such a tax be within the power of the 
State to levy, it matters not whether it be raised directly from the goods, 
or indirectly from them through the license to the dealer. But if such 
tax conflict with any power vested in Congress by the Constitution of 
the Ignited States, it will not be any the less invalid because enforced 
through the form of a personal license. 

"In the case of Brown vs. Mar^-land * tlie question arose whether an 
act of the Legislature of Maryland requiring importers of foreign goods 
to pay tiie State a license tax before selling them in the form and condi- 
tion in which they were imported, was valid and constitutional. It was 
contended that the tax was not imposed on the importation of foreign 
goods, but upon the trade and occupation of selling such goods by whole- 
sale after they were imported. It was a tax. said the counsel, upon the 
profession or trade of the party when that trade was carried on within 
the State, and was laid upon the same jiriiiciple as the usual taxes upon 
retailers, or inn-keepers, or hawkers and pedhirs, or upon any other trade 
exercised within the State. But the Court in its decision replied that it 
was impossilde to conceal the taf't tliat this mode of taxation was only 
varying the form without varying the substance, that a tax on the occu- 
pation of an importer was a tax on importation, and must add to the 
price of the article and be paid by the consumer or by the importer him- 
self in like manner as a direct duty on the article itself. Treating the 
exaction of the license tax from the importer as a tax on the goods im- 
ported, the Court held that the act of .Maryland was in conflict with the 
Constitution ; with the clause proliibiting a State, without the consent 
of Congress, from laying any impost or duty on imports or exports, and 
with the clause investing Congress with the jiower to regulate commerce 
with foreign nations. 

*!;? Wheaton, 4-25, 444. 



26-2 

"►So, in like manner, the license tax exacted by the State of Missouri 
from dealers in goods which are not the product or manufacture of the 
State, before they can be sokl from place to place within the State, must 
be regarded as a tax upon such goods themselves. And the question 
presented is, whether legislation thus discriminatingagaiust the products 
of other States in the conditions of their sale by a certain class of dealers 
is valid under the Constitution of the United States. It was contended 
in the State Courts, and it is urged here, that this legislation violates that 
clause of the Constitution which declares that Congress shall have the 
power to regulate commerce with foreign nations and among the several 
States. The power to regulate conferred by that clause upon Congress, 
is one without limitation ; and to regulate commerce is to prescribe rules 
by which it shall be governed, that is, the conditions upon which it Shall 
be conducted ; to determine how far it shall be free and untrammeled ; 
how far it sliall be ))urdened by duties and imposts, and how far it shall 
be prohibited. 

" Commerce is a term of the largest import ; it comprehends intercourse 
for the i:)urposes of trade in any and all its forms, including the trans- 
portation, purchase, sale, knd exchange of commodities between the citi- 
zens of our country and the citizens or subjects of other countries, and 
between the citizens of different States. The power to regulate it em- 
braces all the instruments by which such commerce may be conducted. 
So liir as some of these instruments are concerned, and some subjects 
which are local in their operation, it has been held that the States may 
provide regulations until Congress acts with reference to them. But 
where the subject to which the power applies is national in its character, 
or of such a nature as to admit of uniformity of regulation, the j)Ower is 
exclusive of all State authority. 

" It will not be denied that that portion of commerce with foreign 
countries and between the States, which consists in tlie transportation 
and exchange of commodities, is of national importaiice, and admits and 
requires uniformity of regulation. The very object of investing this 
power in the general goverunient was to insure this ixniformity against 
discriminating State legislation. The depressed condition of commerce 
and the obstacles to its growth previous to the adoption of the Constitu- 
tion, from the want of some single controlling authority, has been fre- 
quently referred to by this Court in commenting upon the power in 
question. 'It was regulated,' says Chief Justice Marshall, in delivering 
the opinion in Brown vs. Maryland, 'by foreign nations with a single 
view to their own interests, and our disunited efforts to counteract their 
restrictions were rendered impotent by want of combination. Congress, 
indeed, possessed the power of making treaties, but the inability of the 
Federal Government to enforce them became so apparent as to render 
that power in a great degree useless. Those who felt the injury arising 
from this state of things, and those who were capable of estimating the 
influence of commerce on the prosperity of nations, perceived the neces- 



2()8 

sity of giving (lu^ control over this impoft;uit subject to ;i single govern- 
ment. It niiiy be doubtful whether any of the evils proceeding from the 
feebleness of the I-^ederal Government contributed more to that great rev- 
olution which inlroiluceil the present system, than the deep and general 
conviction that couunerce ought to l)e regulated by Congress.' 

"The power which insures uniformity of connnercial regulation must 
cover the property which is transported as an article of commerce from 
hostile or interfering legislation until it has mingled with and become a 
part ol" the general ])roperty of the (;ountry and subjected like it to sim- 
ilar protection, and to no greater burdens. If at any time l)eforc it has 
thus become incorporated into the mass of i)ropcrty of the State or na- 
tion, if can be subjected to any restrictions by State legislation, the ob- 
ject of investing the control in Congress may be entirely defeated. If 
Missouri can require a license ta.K for the sale by traveling dealers of 
goods which are the growth, product, or manuflicture of other States or 
countries, it may require such license tax as a condition of their sale from 
ordinary merchants, and the amount of the tax will be a matter resting 
exclusively in its discretion. 

" The power of the State to exact a license tax of any amount being ad- 
mitted, no authority would remain in the United States or in this Court 
to control its action, however unreasonable or oppressive. Imposts oper- 
ating as an absolute exclusion of the goods would be possible, and all the 
evils of discriminating State legislation, favorable to the interests of one 
State and injurious to the interests of other States and countries, which 
existed previous to the adoption of the Constitution, might follow, and 
the experience of the last llfteen years shows would follow from the ac- 
tion of some of the States. 

" There is a difficulty, it is true, in all cases of this character, in draw- 
ing the line precisely where the commercial power of Congress ends and 
the power of the State begins. A similar difficulty was felt by this Court 
iu Brown vs. Maryland, in drawing the line of distinction between the 
restriction upon the power of the States to lay a duty on imports, and 
their acknowledged power to tax persons and property, but the Court 
observed that the two, though quite distinguishable when they do 
not approach each other, may yet, like the intervening colors between 
white and black, approach so nearly as to perplex the understanding, as 
colors perplex the vision in marking the distinction between them, but 
that, as the distinction exists, it must be marked as the cases arise. And 
the Court, after observing that it might be premature to state any rule 
as being universal in its application, held that when the importer had so 
acted upon the thing imported that it had become incorporated and 
mixed up with the mass of property in the country, it had lost its dis- 
tinctive character as an import, and become subject to the taxing power 
of the State, but that while remaining the property of the importer, in 
his warehouse in the original form and package in which it was im- 
ported, the tax upon it was plainly a duty ou imports, prohibited by the 
Constitution. 



264 

" Following the guarded language of the Court in that case we observe 
here, as was observed there, that it would be premature to state any rule 
which would be universal in its application to determine when the com- 
mercial power of the Federal Government over a commodity has ceased 
and the power of the State has commenced. It is sufficient to hold now 
that the commercial power continues until the commodit3' has ceased to 
be the subject of discriminating legislation by reason of its foreign char- 
acter. That power protects it, even after it has entered the State, from 
any burden imposed by reason of its foreign origin. The act of Missouri 
encroaches upon this power in this respect, and is, therefore, in our judg- 
ment, unconstitutional and void. 

" The fact tliat Congress has not seen fit to prescribe any specific rules to 
govern inter-state commerce does not affect the question. Its inaction 
on this subject, when considered with reference to its legislation with re- 
spect to foreign commerce, is equivalent to a declaration that inter-state 
commerce shall be free and untrammeled. As the main object of that 
commerce is the sale and exchange of commodities, the policy thus es- 
tablished would be defeated by discriminating legislation like that of 
Missouri." 

The doctrine of tlii.-^ case has been approved in Tiernan 
vs. Rinker (12 Otto, 123); and in Webber vs. State of 
Virg-inia (13 Id.), in both of wliicli cases Jnd<i'e Field de- 
livered the opinion of the Court. In the iirst of these 
the C'OUi't said, that the doctrine had never been questioned 
l)ut had been uniformly recognized and followed, and ex- 
presses now its '-settled judgment." In the second one, 
which involved the consideration of the validity of a li- 
cense tax imposed under a statute of Virginia, discrimitiat- 
ing in favor of resident manutacturers and against mann- 
facturers of other States, the Court, in holding the law in- 
valid said, that " commerce among the States in an}^ com- 
modity can only be free when the commodity is exempted 
from all discriminating regnlations and burdens imposed 
by local atuhority by reason of its foreign grow^th or manu- 
facture," 

In the subsequent case of Sherlock vs. Ailing, (3 Otto, 
99,) the Court was called upon to consider the validity of 
State legislation not directed against foreign or inter-state 
commerce or any of its regulations, but indirectly and 
remotely affecting persons engaged in it. In Decem- 



265 

ber, 1858, two steamboats coHided on tbc Obio liivov at 
a point opposite tbe main land of tbc State of Intbana. 
By tbe colbsion tlie linll of one of tbeni was broken in, 
and a fire started, wbi<'b burned tbe boat to tbe water's edge, 
destroying it and causing tbe deatb of one of its passen- 
ger;^ a citizen of Indiana. Tbe administrator of tbe de- 
ceased brouglit an action for bis deatb in one of tlie Courts 
of Common Pleas of Indiana, under a statute of tbat State, 
wbicb provides '• tbat wben tbe deatb of one is caused by 
tbe wrongful act or omission of anotbei', tbe personal rep- 
sentatives of tbe f )rmer may maintain an action tberefor 
against tbe latter, if tbe former migbt bave maintained an 
action, bad be lived, against tbe latter for an injury for 
tbe same act or omission." 

Tbe complaint in tbe action alleged tbat tbe colbsion oc- 
curred within the territorial jurisdiction of Indiana, above 
the line of low-water mark of the river, and charged it 
generally to the careless and negligent navigation of the 
steamboat of tbe defendants by their servants and officers 
of the vessel. To defeat this action tbe defendants relied 
upon substantially the following grounds of defence: 1st, 
that the injuries complained of occurred on tbe river Ohio 
beyond low-water mark on the, Indiana side, and within 
the limits of the State of Kentucky; and that by a law of 
that State an action for tbe death of a party from the care- 
lessness of another could only be brought within one year 
from such deatb, wbicb period bad elapsed when the pres- 
ent action was brought; and, 2d, that at the time of the 
alleged injuries the coUiding boats were engaged in carry- 
ing on inter-state commerce under the laws of the Ignited 
States, and the defendants as their owners were not liable 
for injuries occurring in their navigation through the care- 
lessness of their officers, except as prescribed by those 
laws; and that these did not cover the hability asserted by 
the plaintitf under the statute of Indiana. 

The plaintiff recovered judgment in the Court of Com- 
mon Pleas, which the Supreme Court of the State affirmed, 



266 

and tlie case was taken to tlie Supreme Court of tlie 
United States. There the first ground of defence was not 
considei'ed as open to consideration under the admission 
of the parties, l)ut upon the second ground, the Court, 
speaking througli Judge Field, said as follows: 

" Under this head it is contended that the statute of Indiana creates a 
new liability, and could not, therefore, be applied to cases where the in- 
juries complained of were caused by marine torts, without interfering 
with the exclusive regulation of commerce vested in Congress. The 
position of the defendants, as we understand it, is that as by both the 
common and maritime law the right of action for personal torts dies with 
the person injured, the statute which allows actions for such torts, when 
resulting in the death of the person injured, to be brought by the per- 
sonal representatives of the deceased, enlarges the liability of parties for 
such torts, and that such enlarged liability, if apiilied to cases of marine 
torts, would constitute a new burden upon commerce. 

" In supposed support of this position numerous decisions of this Court 
are cited by counsel, to the effect that the States cannot by legislation 
place burdens irpon commerce with foreign nations or among the several 
States. The decisions go to that extent, and their soundness is not ques- 
tioned. But upon an examination of the cases in which they were ren- 
dered- it will be found that the legislation adjudged invalid imposed a 
tax upon some instrument or subject of commerce, or exacted a license 
fee from parties engaged in commercial pursuits, or created an impedi- 
ment to the free navigation of some public waters, or prescribed condi- 
tions in accordance with which commerce in particular articles or between 
particular jjlaces was reciuired to be conducted. In all the cases the 
legislation condemned operated directly upon commerce, either by way 
of tax upon its business, license upon its pursuit in particular chan- 
nels, or conditions for carrying it on. Thus, in the Passenger Cases,* 
the laws of New York and Massachusetts exacted a tax from the cap- 
tains of vessels bringing passengers trom foreign ports for every passen- 
ger landed. In the Wheeling-Bridge Case f the statute of Virginia 
authorized the erection of a bridge, which was held to obstruct the free 
navigation of the river Ohio. In the case of Siunot vs. Davenport| the 
statute of Alabama required the owner of a steamer navigating the 
waters of the State to lile, before the boat left the port of Mobile, in the 
ofiace of the probate judge of Mobile County, a statement in writing, set- 
ting forth the name of the vessel and of the owner or owners, and his or 
their place of residence and interest iu the vessel, and prescribed penalties 
for neglecting the requirement. It thus imposed conditions for carrying 
on the coasting trade in the waters of the State in addition to those pre- 
scribed by Congress. And in all the other cases where legislation of a State 

* 7 How., 445. 1 13 Id., 518. + 22 Id.. 227. 



2^7 

has boeii held to be null I'or iiiterrerin^ with the coiiiiucrcial power of 
Congress, as in Browu vs. Maryland,* the Tonnage Tax Cases,t and Welton 
vs. Missouri, J the legislation ereated, in the way of tax, license, or condi- 
tion, a direct burden upon commerce, or in sonic way directly interfered 
with its freedom. In the present case no such operation can be ascribed 
to the statute of Indiana. That statute imposes no tax, prescribes no 
duty, and in no respect interfei-es with any regulations for the navigation 
and use of vessels. It only declares a general principle respecting the li- 
ability of all persons witliin the jurisdiction of the State for torts result- 
ing in the death of parties injured. And in the application of the prin- 
ciple it makes no difference where the injury complained of occurred in 
the State, whether on land or on water. General legislation of this kind 
prescribing the liabilities or duties of citizens of a State, without distinc- 
tion as to pursuit or calling, is not open to any valid objection because 
it may atfect persons engaged in foreign or inter-state commerce. Ob- 
jection might with equal propriety be urged agaijist legislation pre- 
scribing the form in which contracts shall be authenticated, or property 
descend or be distributed on the death of its owner, because applicable 
to the contracts or estates of persons engaged in such commerce. In con- 
ferring upon Congress the regulation of commerce, it was never intended 
to cut the States off from legislating on all subjects relating to the health, 
life, and safety of their citizens, though the legislation might indirectly 
affect the commerce of the country. Legislation in a great variety of 
ways may affect commerce and persons engaged in it without constituting 
a regulation of it, within the meaning of the Constitution. 

"It is true that the commercial power conferred by the Constitution is 
one without limitation. It authorizes legislation with respect to all the 
subjects of foreign and inter-state commerce, the persons engaged in it, 
and the instruments by which it is carried on. And legislation has 
largely dealt, so far as commerce by water is concerned, with the instru- 
ments of that commerce. It has embraced the whole subject of naviga- 
tion, prescribed what shall constitute American vessels, and by whom 
they shall be navigated ; how they .shall be registered or enrolled and li- 
censed : to what tonnage, hospital, and other dues they shall be sub- 
jected ; what rules they shall obey in pas.sing each other ; and what pro- 
vision their owners shall make for the health, safety, and comfort of their 
crews. Since steam has been applied to the propulsion of vessels, legis- 
lation has embraced an infinite variety of further details to guard against 
accident and consequent loss of life. 

" The power to prescribe these and similar regulations necessarily in- 
volves the right to declare the liability which shall follow their infrac- 
tion. Whatever, therefore. Congress determines, either as to a regulation 
or the liability for its infringement, is exclusive of State authority. But 
with reference to a great variety of matters touching the rights and lia- 

* 12 Wheat., 42.1. f 12 AVallace. 204. X 1st Otto, 275. 



268 

bilities of persons engaged in commerce, either as owners or navigators 
of vessels, the laws of Congress are silent, and the laws of the State gov- 
ern. The rules for the acquisition of property by persons engaged in 
navigation, and for its transfer and descent, are, with some exceptions, 
those prescribed by the State to which the vessels belong. And it may 
be said generally that the legislation of a State, not directed against com- 
mei'ce or any of its regulations, but relating to the rights, duties, and li- 
abilities of citizens, and only indirectly and remotely affecting the opera- 
tions of commerce, is of obligatory force upon citizens within its territo- 
rial jurisdiction, whether on land or water, or engaged in commerce, for- 
eign or inter-state, or in any other pursuit. In our judgment the statute 
of Indiana falls under this class. Until Congress, therefore, makes some 
regulation touching the liability of parties for marine torts resulting in 
the death of the persons injured, we are of opinion that the statute of 
Indiana applies, giving a right of action in such cases to the personal rep- 
resentatives of the deceased, and that, as thus applied, it constitiites no 
encroachment upon the commercial power of Congress."* 

But the most elaborate consideration of the conunercial 
clause of the Constitution, and the extent to wliich the 
power of Congress is exclusive of State authority, found 
among the recent decisions of the Court, is contained 
in an opinion rendered at the last term, in the case of 
County of Mobile vs. . Kimball.— (12 (3tto., 691.) In 
February, 1867, the Legislature of Alabama passed an 
act to " provide for the improvement of the river, bay, 
and harbor of Mobile." It created a board of commis- 
sioners for the improvement of the river, harbor, and 
bay of Mobile, and required the president of the Commis- 
sioners of Revenue of Mobile County to issue bonds to 
the amount of one million dollars, and deliver them, 
when called for, to the board, to meet the expenses of the 
work directed. The board was authorized to apply the 
bonds or their proceeds to the cleaning out, deepening, 
and widening of the river, harbor, and bay, or any part 
thereof, or to the construction of an artificial harbor in 
addition to such improvements. 

In June, 1872, the board of commissioners entered into 
a contract with Messrs. Kimball & Slaughter to dredge 

* United States vs. Bevaus, 3 Wheat., 337. 



209 

and cut a chaniiol through a dosi^-iiakMl l»ai' in the l)ay,of a 
specified width. (U'pth, and distance, at a named price per 
eul)ic yard of material excavated and removed, and 1o 
receive in payment the honds of tlie county issued mider 
the act mentioned. Fn pursuance of this conti'act, the 
work aii'ret'd upon was at once uncha'takeii l)y Kimball 
& Slauii-hter, and was c-ompieted in March, 1878, and ac- 
ce[)ted l>v the hoard thi'ouuh its authorized en<i'ineer. The 
amount due to tluan was [)aid, with the ext-eption of six 
l)on(ls,and to ohtain the delivery of those six, or payment 
of their vidue, suit was hrongltt against the county. Among 
other defences to the suit, it \Yas contended that the act of 
the State, mider wlfudi the work was done, conflicted with 
the commercial power vested in Congress, and was, there- 
fore, void. To this objection the Court, speaking through 
Judge Field, said as t()llows: 

"Tlie objeotiou ttiat the law of the State, in authorizing the improve- 
ment of the harbor of MobiU% trenches upon the commercial power of 
Congress, assumes an exclusion of State authority from all subjects in 
relation to which that power may be exercised not warranted by the 
adjudications of this Court, notwithstanding the strong expressions 
used by some of its judges. That power is indeed without limitation. 
It authorizes Congress to prescribe the conditions upon which commerce 
in all its forms shall be conducted between our citizens and the citizens 
or sul)jects of other countries, and between the citizens of the several 
States, and to adopt measures to promote its growth and insure its safety. 
And as commerce embraces navigation, the improvement of harbors and 
bays along our coast, and of navigable rivers within the States connecting 
with them, falls within the power. The subjects, indeed, upon which 
Congress can act under this power are of infinite variety, requiring for 
their successful management different plans or modes of treatment. 
Some of them are national in their character, and admit and require uni- 
formity of regulation, affecting alike all the States ; others are local, or 
are mere aids to commerce, and can only be properly regulated by pro- 
visions adapted to their special circumstances and localities. Of the 
former class may be mentioned all that portion of commerce with for- 
eign countries or between the States which consists in the transportation, 
purchase, sale, and exchange of commodities. Here there can, of neces- 
sity, be only one system or plan of regulations, and that Congress alone 
can prescribe. Its non-action in such cases, with respect to any particu- 
lar commodity or mode of transportation, is a declaration of its purpose 
that the commerce in that commodity or "by that means of transportation 



270 

shall be free. There would otherwise be no security against conflicting 
regulations of clitferent States, each discriminating in favor of its own 
products and citizens and against the products and citizens of other 
States. And it is a matter of public history that the object of vesting 
in Congress the power to regulate commerce with foreign nations and 
among the States was to insure uniformity of regulation against conflict- 
ing and discriminating State legislation. 

"Of the class of subjects local in their nature, or intended as mere aids 
to commerce, which are best provided for by special regulations, may be 
mentioned harbor pilotage, buoy^, and beacons to guide mariners to the 
proper channel in which to direct their vessels. 

" The rules to govern harbor pilotage must depend in a great degree upon 
the peculiarities of the ports where they are to be enforced. It has been 
found by experience that skill and efficiency on the part of local pilots 
is best secured by leaving this subject principally to the control of the 
States. Their authority to act upon the matter and regulate the whole 
subject, in the absence of legislation by Congress, has been recognized by 
this Court in repeated instances. In Cooley vs. The Board of Wardens of 
the Port of Philadelphia, the Court refers to the act of Congress of 1789, 
declaring that pilots should continue to be regulated by such laws as the 
States might respectively thereafter enact for that purpose; and observes 
that 'it manifests the understanding of Congress, at the outset of the 
government, that the nature of this subject is not such as to require its 
exclusive legislation. The practice of the States and of the national gov- 
ernment has been in contbrmity with this declaration, from the origin of 
the natioual government to this time ; and the nature of the subjeet, 
Avhen examined, is such as to leave no doubt of the superior fitness and 
propriety, not to say the absolute necessity, of difterent systems of reg- 
ulation, drawn from local knowledge and expeiience, and conformed to 
local wants.'— (12 How., p. 320.) 

" Buoys and beacons are important aids, and sometimes are essential to 
the safe navigation of vessels, in indicating the channel to be followed at 
the entrance of harbors and in rivers; and their establishment by Con- 
gress is undoubtedly within its commercial power. But it would be ex- 
tending that power, to the exclusion of State authority, to an unreason- 
able degree, to hold that, whilst it remained unexercised upon this sub- 
ject, it would be unlawful for the State to provide the buoys and beacons 
required for the safe navigation of its harbors and rivers, and in case of 
their destruction, by storms or otherwise, it could not temporarily sup- 
ply their places until Congress could act in the matter and provide for 
their re-establishment. That power which every State possesses, some- 
times termed its police power, by which it legislates for the protection of 
the lives, health, and property of its people, would justify measures of 
this kind. 

" The unilbrmity of commercial regulations, which the grant to Con- 
gress was designed to secure against conflicting State provisions, was nee- 



271 

essiuily iiiteiuled only Ibi' (.'hscs when; sucli uiiil'orinity is piacticiiblc. 
Whore, from its nature or the sphere of its operation, tlie subject is 
local and limited, special regulations adapted to the immediate locality 
could only have been contemplated. State action upon such subjects 
can constitute no interference with the commercial power of Con- 
gress; for wlieu that acts, the State authority is superseded. Inaction 
of Congress upon these subjects of a local nature or operation, unlike 
its inaction upon matters affecting all the States and requiring uni- 
formity of regulation, is not to be taken as a declaration that nothing 
shall be done with respect to them, but is rather to be deemed a declara- 
tion that, for the time being, and until it sees fit to act, they may be reg- 
ulated by State authority. 

'' The improvement of harbors, hays, and navigable rivers within the 
States falls within this last category of cases. The control of Congress 
over them is to insure freedom in their navigation, so far as that is essen- 
tial to the exercise of its commercial power. Such freedom is not en- 
croached upon by the removal of obstructions to their navigability, or hy 
other legitimate improvement. The States have as full control over their 
purely internal commerce as Congress has over commerce among the sev- 
eral States and with foreign nations; and to promote the growth of that 
internal commerce and insure its safety, they have an undoubted right to 
remove obstructions from their harbors and rivers, deepen their channels, 
and improve them generally, if they do not impair their free navigation 
as permitted under the laws of the United States, or defeat any system 
for the improvement of their navigation provided by the general govern- 
ment. Legislation of the States for the purposes and within the limits 
mentioned do not infringe npon the commercial power of Congress; and 
so we hold that the act of the State of Alabama, of February KJ, 1867, to 
provide for the 'improvement of the river, baj^, and harbor of .Mobile' 
is not invalid. 

"There have been, it is true, expressions by individual judges of this 
Court going to the length that the mere grant of the commercial powder, 
anterior to any action of Congress under it, is exclusive of all State au- 
thority ; but there has been no adj udication of the Court to that effect. In 
the opinion of the Court in Gibbons vs. Ogden, the first and leading case 
upon the construction of the Constitution, and which opinion is recog- 
nized as one of the ablest of the great Chief Justice then presiding, there 
are several expi-essions which would indicate, and his general reasoning 
would tend to the same conclusion, that in his judgment the grant of the 
commercial power was of itself sufficient to exclude all action of the 
States ; and it is upon them that the advocates of the exclusive theory 
chiefly rely ; and yet be takes care to observe that the question was not 
involved in the decision required by that case. ' In discussing the ques- 
tion whether this power is still in the States,' he observes that ' in the 
case under consideration we may dismiss trom it the inquiry, whether it 
is surrendered bv the mere grant to Congre.ss, or is retained until Con- 



gress shall exercise the power. We iii;i_\ dismiss that iiujuiry because, 
it has been exercised, and the regulations which Congress deemed it pro- 
per to make are now in full operation. The sole question is, can a State 
regulate commerce Avith foreign nations and among the several States 
while Congress is regulating it?' And the decision was necessarily re- 
stricted by the limitations of the question presented. It determined 
that the grant of power by the Constitution, accompanied by legislation 
under it, operated as an inhibition upon the States from interfering with 
the subject of that legislation. The acts of New York giving to Living- 
ston and Fulton an exclusive right to navigate all the waters within its 
jurisdiction, with vessels propelled by steam, for a certain period, being 
in collision with the laws of Congress regulating the coasting trade, were, 
therefore, adjudged to be unconstitutional. This judgment was rendered 
in 1824.— (9 Wheat., 1.) Some years later (1829) the case of Wilson vs. 
Blackbird Creek Marsh Company came befoi-e the Court. There, a law 
of Delaware authorizing the construction of a bridge over one of its small 
navigable streams, which obstructed the navigation of the stream, was 
held to be repugnant to the commercial power of Congress. The Court, 
Chief Justice Marshall delivering its opinion, placed its decision entirely 
upon the absence of any congressional legislation on the subject. Its 
language was : ' If Congress had passed any act which bore upon the case 
— any act in execution of the power to regulate commerce, the object of 
which was to control State legislation over these small navigable creeks 
into which the tide flows, and which abound throughout the lower 
country of the Middle and Southern States, we sliould not feel much 
difficulty in saying that a State law coming in conflict with such act 
would be void. But Congress has passed no such act. The repugnancy 
of the law of Delaware to the Constitution is placed entirely on its repug- 
nancy to the power to regulate commerce with foreign nations and among 
the several States — a power which has not been so exercised as to affect 
the question.'— (2 Peters, 282.) 

'■ In the License Cases, which were before the Court in 1847, there was 
great diversity of views in the opinions of the different judges upon the 
operation of the grant of the commercial power of Congress in the absence 
of congressional legislation. Extreme doctrines upon both sides of the 
question were asserted by some of the judges, but the decision reached, 
so far as it can be viewed as determining any question of construction, 
was confirmatory of the doctrine that legislation of Congress is essential 
to prohibit the action of the States upon the subjects there considered. 

" But in 1851, in the case of Cooley vs. The Wardens of the Port of Phil- 
adelphia, to which we have already referred, the attention of the Court 
appears to have been for the first time drawn to the varying and differ- 
ent regulations reijuired by the different subjects upon wiiich Congress 
may legislate under the commercial power .; and from this consideration 
the conclusion was reached that, as some of these subjects are national 
in their nature, admitting of one uniform plan or system of regulation, 



1>78 

whilst others, bt-iufj; U)Va\ in their imturc or opciiitioii. can he Ijest re<^ii- 
lated by the States, the exclusiveness of the power in any case is to be 
determined more by the nature of the subject uixm whirli it is to operate 
than by the terms of the grant, wliieli. thon.uli ueneral, arc not accompa- 
nied l>y any express prohibition to the exercise of the jjower by the States. 
The decision was confined to tlie validity of regulations by the States of 
harbor pilotage ; but the reasoning of the Court suggested as satisfactory a 
solution as perhaps could be obtained of the question which had so long 
divided the judges. The views expressed in the opinion delivered are 
followed in Oilman vs. Philadelphia (3 Wall., 727), and are mentioned with 
approval in Crandall vs. State of Nevada (6 Wall., 42). In the first of 
these cases the Court, after stating that some subjects of commerce call 
for uniform rules and national legislation, and that others can ' be best 
regulated by rules and provisions suggested by the varying circumstances 
of ditferent localities, and limited in their operation to such localities re- 
spectively,' says, ' whether the power in any given case is vested exclu- 
sively in the general government, depends upon the nature of the sub- 
ject regulated.' The doctrine was subsequently recognized in the case 
of Welton vs. ]Missouri (91 U. S., 282), in Henderson vs. Mayor of New 
York (95 U. S., 259), and in numerous other cases ; and it may be con- 
sidered as expressing the final judgment of the Court. 

Perhaps some of the divergence of views upon this question among 
former judges may have arisen from not always bearing in mind the dis- 
tinction between commerce, as strictly defined, and its local aids or in- 
struments or measures taken for its improvement. Commerce with for- 
eign countries and among the States, strictly considered, consists in inter- 
course and traffic, including in these terms navigation and the trans- 
portation and transit of persons and property as well as the purchase, 
sale, and exchange of commodities. For the regulation of commerce as 
thus defined there can be only one system of rules applicable alike to the 
whole country ; and the authority which can act for the whole country 
can alone adopt such a system. Action upon it by separate States is not, 
therefore,' permissible. Language affirming the exchisiveness of the 
grant of power over commerce as thus defined may not be inaccurate, 
when i1^ would be so if applied to legislation upon subjects which are 
merely auxiliary to commerce." 



The Power of Taxation by the Oexeral axi> State 
Governments, and some of its LiMiT.vnoNS. 

It has been settled hy immeroiis decisions of the Su- 
preme Court of the United States that the ohliii-ations 
and instrumentahties of the o:eneral o-overnment, that is. 



l74 

tlie moans by which its functions are executed, arc not 
subject to taxation by the States. 

Ill McCallough vs. Alaryhuid, (4 Wheaton, 432,) de- 
cided in 1819, — which is the leading case on this sub- 
ject, — a statute of Maiyland imposing a tax upon a branch 
of the Bank of the United States estabhshed at Balti- 
more, in that State, was considered. The Ooui't held that 
the bank, being one of the instrumentalities of the gov- 
ernment in the execution of its powers, was not subject 
to taxation by the State; that the power to create the 
bank implied the power to preserve it, and that the right 
of the State to tax, if conceded, might be so exercised as 
to destroy the institution, and thus wholly defeat the op- 
erations of the Federal Government. " If the States," 
said Chief Justice Marshall, " may tax one instrument 
employed by the government in the execution of its pow- 
ers, they may tax any and every other instrument. They 
may tax the mail; they may tax the mint; they may tax 
patent rights; they may tax the papers of the custom- 
house, tliey may tax judicial process; they may tax all 
the means emj!)loyed by the government to an excess 
wliich would defeat all the ends of government. This 
was not intended by the American people. They did 
not design to make their government dependent on the 
States." 

In Weston vs. Charleston, (2d Peters, 449,) decided in 
1829, an ordinance of the city of Charleston imposing a 
tax upon all personal estate owned in the said city, includ- 
ing, among other things, six and seven per cent, stock of 
the United States, was considered. The Court held that 
the tax in question was a tax upon the contract subsisting 
between the government and individuals, and, therefore, 
operated directly upon the power to borrow money on the 
credit of the United States; that if the right to impose it 
existed with the States, it was a right wdiich in its nature 
acknowledged no limits, and might be exercised to the 
serious endiarrassment of the Federal (rovernment; that 



such ;i rii;-lit was, tlKM'cl'oi'e, iiicoiisistcMit with the sii[(reiuacy 
of that ii'ovenmuMit in the powers i^-i'aiitcd to it. 

Til DobhiiKs vs. The Coininissiotun-s of Krie County, 
(K; Peters, 435,) deeided in 1842, a law of Pennsylvania, 
authorizing an assessment upon all "■ oliiees and positions 
of profit," was lield invalid so far as it applied to offices of 
the United States, the Court re-affirming the doctrine that 
the States cannot impose a tax upon the means and instru- 
mentalities of the general government in the execution of 
its powers. The compensation, said the Court, of an officer 
of the United States is fixed by a law of Congress passed 
in the exercise of its discretion; such law confers upon liim 
the right to the compensation in its entireness,and any act 
of a State imposing a tax upon the olRce in diminishing its 
recompense conflicts with that law. 

The principle involved in these decisions, that the 
means and instrumentalities by which the general gov- 
ernment executes its powders cannot be embarrassed and 
burdened by the action of the States, is equally applicable 
to prevent the means and instrumentalities of the govern- 
ments of the States, essential to the execution of their re- 
served powers, from being in like manner embarrassed and 
burdened l)y the general government, and was so applied 
in the case of Collector vs. Day.— (11 Wall., 113.) Un- 
der an act of Congress a tax had been levied upon the 
salarj' of a judge of probate in Massachusetts. The judge 
paid the tax under protest, and brought suit to recover 
it back. The Supreme Court held that it was not compe- 
tent for Congress to impose a tax upon the salary of a ju- 
dicial officer of a State. Referring to the case of Dobbins 
vs. Tlie Commissioners of Erie County, the Court, speak- 
ing through Judge ISTelson, said: 

" If the means and instrumentalities employed by that government [the 
general government] to carry into operation the powers granted to it are, 
necessarily, and, for the sake of self-preservation, exempt from taxation by 
the States, why are not those of the States depending upon their reserved 
powers, for like reasons, equally exempt from federal taxation ? Their 
unimpaired existence in the one case is as essential as in the other. It is 

19 



27(J 

admitted that there is no express provision in the Constitntion that pro- 
hihits the general government from taxing the means and instrumentali- 
ties of the Slates, nor is there any prohibiting the States from taxing the 
means and instrumentalities of that government. In both cases the ex- 
emption rests i^pon necessary implication, and is upheld by the great 
lavs^ of self-preservation ; as any government, whose means employed in 
conducting its oiierations, if subject to the control of another and distinct 
government, can exist only at the mercy of that government." 

Ill addition to this restriction upon both governments in 
tlie power of taxation, — that it cannot be exercised so as 
to impair the existence and efficiency of the other — there 
is a further restriction necessarily arising from the hmits 
of their territorial jurisdiction. I^either can exercise the 
taxing power upon property or persons beyond that juris- 
diction. The attempt to exercise it in that way would be 
regarded elsewhere as a mere abuse of authority. Says 
Chief Justice Marshall: "All subjects over which the sov- 
ereign power of a State extends are objects of taxation, but 
those over which it does not extend are upon the soundest 
principles exempt from taxation. This proposition may al- 
most be pronounced self-evident." — (4 Wheaton, 429.) 

This subject came before the Supreme Court for special 
consideration in the case of Railroad Company vs. Penn- 
sylvania, which is reported under the title of State Tax on 
Foreign-Held Bonds.— (15 Wall., 300.) In May, 1868, 
the Legislature of that State passed an act requiring the 
president, treasurer, or cashier of every corporation, ex- 
cept savings banks created under its laws and doing busi- 
ness there, which paid interest to bondholders or other 
creditors, to retain from them before such payment a tax 
of five per cent, upon every dollar of interest, and to pay 
ovei- the same semi-annually to the State treasurer for the 
use of the Commonwealth. 

In 1848 the Legislatui'e of Ohio incorporated the Cleve- 
land, Painesville and Ashtabula Kailroad Company, and 
authorized it to construct a railroad from the city of Cleve- 
land, in that State, to the line of the State of Pennsylva- 
nia. Under this act and its supplement, passed in 1850, 



tlic n^ad \v:is constructed. 111,1854 tlio Ijcuisiatui'c of I'oiin- 
syl\:iiiia antliorized the c(Mii])aiiy to coMstniet a road iVoni 
Kric, ill tliat State, to tlie State line of Oliio, so as to con- 
nect with tlie voad iVoni Clcvchind, and to [turchasc a 
I'oad already constructed between those places. This road 
was constructed, or tlie one c(nistfucted was purchased, so 
that the two roads etfected a continuons line hetweeii the 
cities of Cleveland and Erie a distance of iiinety-Hve and 
oue-half miles, twenty -tive of which were in Pennsylva- 
nia. The company, so far as it acted in Pennsylvania 
uiid(M- the authority of an act of its Le^'islature, was held 
to he a corporation in that State aud subject to its laws 
for the taxation of incorporated companies, thongh there 
was only one board of directors for both companies. ]n 
1<S68 the funded debt of the company amounted to two 
and one-half millions of dollars, and was in Ivnids secured 
liy three mortgages, — one for tive hundred thonsand dol- 
lars, made in 1854; one for a million of dollars, made 
in 1851), and one for a million dollars, made in 1867. 
Each of these was npon the entire road from Erie, in 
Pennsylvania, to Cleveland, in Ohio, including the right- 
of-way and all the buildings and other property of every 
kind connected with the road. The principal and interest 
of the bonds first issued were payable in Philadelphia. The 
principal and interest of the other bonds were payable 
in Xew York. All of them were executed and delivered 
in Cleveland, Ohio, and nearly all of them were issued, 
and were afterwards held by non-residents of Pennsyl- 
vania and citizens of other States. The officers of the 
State of Pennsylvania endeavored to enforce tlie tax im- 
posed by the act of 1868 upon the interest on these bonds, 
having first apportioned it according to the length of the 
road, assigning to the ptnrt in the State of Pennsylvania 
an amount in [irojiortion to the wdiole inde])tedness wliich 
that part bore to the whole road. The validity of the tax, 
so far as it applied to the interest on the bonds made pay- 
able out of the State, issued to and h(dd by non-residents 



of the State and citizens of other States, was contested in 
the courts of the State, first in the Common Pleas and 
then in the Supreme Court, and heing by them sustained, 
was brought to the consideration of tlie Supreme Court of 
the United States. In denying the vahdity of the tax, that 
Court, speaking through Judge Field, said as follows: 

" Tlie power of taxation, however vast in its character and searching 
in its extent, is necessarily limited to subjects within the jurisdiction of 
the State. These subjects are persons, property, and business. Whatever 
form taxation may assume, whether as duties, imposts, excises, or licenses, 
it miTst relate to one of these subjects. It is not possible to conceive of 
any other, though, as applied to them, the taxation may be exercised in 
a great variety of ways. It may touch property in every shape, in its nat- 
ural condition, in its nianufiictured form, and in its various transmuta- 
tions ; and the amount of the taxation may be determined by the value 
of the property, or its use, or its capacity, or its productiveness. It may 
touch business in the almost infinite forms in which it is conducted, in 
professions, in commerce, in manufactures, and in transportation. Un- 
less restrained by provisions of the Federal Constitution, the power of the 
State as to the mode, form, and extent of taxation is unlimited, where 
the subjects to which it applies are within her jurisdiction. Corpora- 
tions may be taxed like natural persons upon their property and business ; 
but debts owing by corporations, like debts owing by individuals, are not 
property of the debtors in any sense. They are obligations of the debtors 
and only possess value in the hands of the creditors. With them they 
are property, and in their hands they may be taxed. To call debts pro- 
perty of the debtors, is simply to misuse terms. All the property there 
can be in the nature of things in debts of corporations, belongs to the 
creditors to whom they are payable, and follows their domicile wherever 
that may be. Their debts can have no locality separate from the parties 
to whom they are due. This principle might be stated in many different 
ways, and supported by citations from numerous adjudications; but no 
number of authorities and no forms of expression could add anything to 
its obvious truth, which is recognized upon its simple statement. 

" The bonds issued by the railroad company in this case are undoubt- 
edly property, but property in the hands of the holders, not property of 
the obligors. So far as they are held by non-residents of the State, they 
are property beyond the jurisdiction of the State. The law which re- 
quires the treasurer of the company to retain five per cent, of the 
interest due to the non-resident bondholder is not, therefore, a legiti- 
mate exercise of the taxing power. It is a law which interferes between 
the company and the bondholder, and under the pretence of levying 
a tax commands the company to withhold a portion of the stipu- 
lated interest and pay it over to the State, It is a law which thus im- 



pairs llif obligation of a coiiliiK't iK'twuen the parties. The oljligalioii of 
a contract depends upon its terms and the moans wliicli tlie law in ex- 
istence at tlie time affords for its enforcement. A law wliich alters the 
terms of a contract by imposing new conditions, or dispensing with those 
expressed, is a law wliicb impairs its obligations, lor, as stated on another 
occasion, such a law relieves the parties from the moral duty of perform- 
ing the original stipulations of the contract, and it prevents their legal 
enforcement. The Act of I'ennsylvania of May 1st, 18(58, falls within 
this description. It directs the treasurer of every iueorporated company 
to retain from the interest stipulated to its bondholders five per cent, 
iipon every dollar and pay it into the treasury of the Commonwealth. It 
thus sanctions and commands a disregard of the express provisions of the 
contracts between the company and its creditors. It is only one of many 
cases where, under the name of taxation, an oppressive exaction is made 
without constitutional warrant, amounting to little less than an arbitrary 
seizure of private ])roperty. It is, in fact, a forced contribution levied 
iipon property held in other States, where it is subjected, or may be sub- 
jected, to taxation upon an estimate of its full value." 

" The case of 3Ialtby vs. The Heading and Columbia Railroad Company, 
decided by the Supreme Court of Pennsylvania in 1866, was referred to 
by the Common Pleas in support of its ruling, and is relied upon by 
counsel in support of the tax in question. The decision in that case does 
go to the full extent claimed, and holds that bonds of corporations held 
by non-residents are taxable in that State. But it is evident, from a pe- 
rusal of the opinion of the Court, that the decision proceeded upon the 
idea that the bond of the non-resident was itself property in the State, 
because secured by mortgage on property there. ' It is undoubtedly 
true,' said the Court, 'that the Legislature of Pennsylvtinia cannot im- 
pose a personal tax upon the citizen of another State, but the constant 
practice is to tax property within our jurisdiction which belongs to non- 
residents.' And again : ' There must be jurisdiction over either the prop- 
erty or the person of the owner, else the power cannot be exercised ; but 
when the property is within ovir jurisdiction, and enjoys the protection 
of our State government, it is justly taxable, and it is of no moment that 
the owner, who is required to pay the tax, resides elsewhere.' There is 
no doubt of the correctness of these views. But the Court then proceeds 
to state that the principle of taxation as the correlative of protection is 
as applicable to a non-resident as to a resident ; that the loan to the non- 
resident is made valuable by the franchises wliich the company derived 
from the Commonwealth, and as an investment rests upon State author- 
ity, and therefore ought to contribute to the support of the State gov- 
ernment. It also adds that though the loan is for some purposes subject 
to the law of the domicile of the holder, 'yet, in a very high .sense,' it is 
also pro])erty in Pennsylvania, observing in support of this position that 
the liolder of a bond of the company could not enforce it except in that 
State, and that the mortgage given for its security was upon property and 



280 

franchises within her jurisdiction. Tlie amount of all Avhich is this : 
that the State which creates and protects a corporation ought to have the 
right to tax the loans negotiated by it, though taken and held by non- 
residents, a proposition which it is unnecessary to controvert. The le- 
gality of a tax of that kind would not be questioned if, in the charter of 
the company, the imposition of the tax were authorized, and in the bonds 
of the company, or its certificates of loan, the liability of the loan to tax- 
ation were stated. The tax in that case would be in the nature of a li- 
cense tax for negotiating the loan, for, in whatever manner made payable, 
it would ultimately fall on the company as a condition of effecting the 
loan, and parties contracting with the company would provide for it by 
proper stipulations. But thei'e is nothing in the observations of the 
Court, nor is there anything in the opinion, which shows that the bond 
of the non-resident was property in the State, or that the non-resident 
had any property in the State which was subject to taxation, within the 
principles laid down by the Court itself, which we have cited. The 
property mortgaged belonged' entirely to the company, and so tar as it 
was situated in Pennsylvania was taxable there. If taxation is the cor- 
relative of protection, the taxes which it there paid were the correlative 
for the jirotection which it there received. And neither the taxation of 
the projierty nor its protection was augmented or diminished by the fact 
that the corporation was in debt or free from debt. The property in no 
sense belonged to the rion-resident bondholder or to the mortgagee of the 
company. The mortgage transferred no title ; it created only a lien upon 
the property. Though in form a conveyance, it was both at law and in 
equity a mere security for the debt. That such is the nature of a mort- 
gage in Pennsylvania has been frequently ruled by her highest Court. 
In Witmer's Appeal the Court said : 'The mortgagee has no estate in the 
land, any more than the judgment creditor. Both have liens upon it, 
and no more than liens.' And in that State all possible interests in lauds, 
whether vested or contingent, are subject to levy and sale on execution ; 
yet it has been held, on the ground that a mortgagee has no estate in the 
lands, that the mortgaged premises cannot be taken in execution for his 
debt Such being the character of a mortgage in Penn- 
sylvania, it cannot be said, as was justly observed by counsel, that the 
non-resident holder and owner of a bond, secured by a mortgage in that 
State, owns any real estate there. A mortgage being there a mere chose 
in action, it only confers upon the holder, or the party for whose benefit 
the mortgage is given, a right to jiroceed against the property mortgaged, 
upon a given contingency, to enforce, by its sale, the payment of his de- 
mand. This right has no locality independent of the party in whom it 
resides. It may undoubtedly be taxed by the State when held by a resi- 
dent therein, but when held by a non-resident, it is as much beyond the 
jurisdiction of the State as the person of the owner. 

" It is undoubtedly true that the actual situs of personal projjcrty, 
which has a visililo and tangible existence, and not tlie domicile of its 



•281 

owner, will, in iminy cases. (Ictcriiiiiic llic Slate in which it may lie taxed. 
The same thinn is tiu(^ oT pulilic securities, consisting of State bonds and 
bonds of municipal biidics, and cireulatinu; notes of banking institutions ; 
the former, by general usage, have ae.|iiircd the character of and are 
treated as property in the place w lure they are Inuiid, though removed 
from the domicile of the owner ; the latter are treated and pass as 
money wherever they are. But other personal property, consisting of 
bonds, mortgages, and debts generally, has no situs independent of the 
domicile of the owner, and certainly can have none wliere the instru- 
ments, as in the present case, constituting the evidences of del)t, are not 
separated from the ])ossession of the owners. 

"Cases were cited by counsel on the argument from the decisions of 
the highest Courts of several States, which accord with the views we 
have expressed. In Davenport vs. The Mississippi and 3Iissoun Railroad 
Company {\2 loica, 539), the question arose l)etbre the Supreme Court of 
Iowa, whether mortgages on property in that State held by non-residents 
could be taxed under a law which provided that all property, real and 
personal, within the State, virith certain exceptions not material to the 
present case, should be subject to taxation, and the Court said : ' Both 
in law and equity the mortgagee has only a chattel interest. It is true 
that the situs of the property moxtgaged is within the jurisdiction of the 
State, but the mortgage itself, being personal property, a chose in action, 
attaches to the person of the owner. It is agreed by the parties that the 
owners and holders of the mortgages are non-residents of the State. If 
so, and the property of the mortgage attaches to the person of the owner, 
it follows that these mortgages are not property within the State, and if 
not, they are not the subject of taxation.' 

" Some adjudications in the Supreme Court of Pennsylvania were also 
cited on the argument, which appear to recognize doctrines inconsistent 
with that announced in Malthy vs. Beading and Cohunhia Railroad Com- 
pany, particularly the case of MeKeen vs. The County of Northampton, and 
the case of ShorVs Estate, but we do not deem it necessary to pursue the 
matter further. We are clear that the tax cannot be sustained ; that the 
bonds, being held* by non-residents of the State, are only property in their 
hands, and that they are thus beyond the jurisdiction of the taxing power 
of the State. Even where the bonds are held by residents of the State, 
the retention by the company of a portion of the stipulated interest can 
only be sustained as a mode of collecting a tax upon that species of prop- 
erty in the State. When the property is out of the State, there can then 
be no tax upon it for which the interest can be retained. The tax laws 
of Pennsylvania can have no extra-territorial operation, nor pan any law 
of that State, inconsistent with the terms of a contract made with or pay- 
able to parties out of the State, have any effect upon the contract wiiilst 
it is in the hands of such parties or other non-residents. The extra-ter- 
ritorial invalidity of State laws discharging a debtor from his contracts 
with citizens of other States, even though made and payable in the State 



282 

after the passage of such laws, has been .judicially determined by this 
Court. A like invalidity must, on similar grounds, attend State legisla- 
tion which seeks to change the obligation of such contracts in any par- 
ticular, and on stronger grounds where the contracts are made and paya- 
ble out of the State." 



There ai-e other Umitations upon the power of taxation 
by the States imposed by their respective constitutions, de- 
signed to secure, as far as practicable, an equal distribution 
of the burdens of government, by requiring a uniform 
rate of taxation upon property of the same kind, and a 
uniform mode of assessment or appraisement of value. 
Of these it is not the purpose of this narrative to s[)eak. 
There is, however, in the Fourteenth Amendment a clause 
which, according to the force attributed to it by Judge 
Field, may yet be invoked to prevent the imposition of 
unequal taxation by the States, of which there are so many 
daily complaints throughout the country — the clause which 
declares that no State shall " deny to any person, within 
its jurisdiction, the equal protection of the laws." In his 
opinion in the Virginia Jury Ceases, he contended that the 
prohibitions of the Fourteenth Amendment being against 
the State, can only be properly enforced through the 
action of the judiciary, in like manner as the prohibition 
against the passage of a bill of attainder or an ex post facto 
law, or a law impairing tlie obligation of contracts ; — in 
other w^ords, that a law of a State can 1)0 annulled only 
through the judiciary, and not by criminal proceedings 
against its legislators, judges, and other ofhcers. He also 
contended that the clause mentioned applies only to civil 
rights and not to political or social rights; and yet he gave 
to it an immense force for the protection of private rights 
against arlntrary and unequal legislation of the States. 
His language is as follows : 

" It opens the Courts of the country to every one, on the same terms, 
for the security of his person and property, the prevention and redress 
of wrongs, and the enforcement of contracts ; it assures to every one the 
same rules of evidence and n)odes of procedure ; it allows no inipedi- 



288 

nicnts to the aaiiiisitiou ol' property ami (lie pnr.suil ol' haiipiiiess, to 
wliich all are not subjected; it suffers no other oi- (jreali r liiinlnix m- c/uiri/cs 
to be laid upon one than sueh as arc cquallij borne hi/ othi m ; ami in tlie ad- 
ministration of criniinal justice it jn'miits no ditVerent or greater i)unisli- 
nient to be imposed upon one than such as is prescribed to all for like 
otfences." 

The clause was intended to seeure equality oi" ri^'lit to 
every person within the States, and this necessarily inii»He8 
that he sliall not he su1)jected to any i^jreater burdens than 
his fellows. "If one, tlierefore, is arl)itrarily taxed by a law 
of a State at live per cent, on the value of his propci'ty, 
while others are taxed on the value of the same kind of 
})roperty oidy one per cent., or if he l)e thus taxed because 
he [)ursues one calling or trade, or because he is black or 
brown or yellow in his color, whilst those of another pur- 
suit or of a (lilierent color are taxed at a lower rate, he is 
sul)jected to an unecpial share of tlie public burdens and 
may justly invoke the protection of the amendment 
against the action of the State. 

In People vs. Weaver, where equality in taxation was 
disregarded l)y a law of the State of New York in the face 
of a law of Congress, the Suj)reme Court declared the 
State Liw invalid.— (10 Otto, 539.) Upon the same prin- 
ciple a State law sanctioning the imposition of unequal 
burdens must fall before the constitutional amendment. 



The Tiu'st Character of Directors of Corporations. 

In the preceding pages, from 216 to 255 inclusive, a 
statement is made of several opinions of Judge Field re- 
specting the powers and liabilities of corporations. Dur- 
ing the past term, in the case of Wardell vs. The Union 
Pacific Railroad Company, he delivered another opinion 
touching the obligations of the directors of sucli bodies 
and the fiduciar}^ character of their office. The case arose 
in this way. The road of the ITnion Pacific Company 
passes for its entire length, from Omaha, on the Missouri 



284 

River, to Ogden, in Utah, a distance of over one thousand 
miles, throngli a country ahnost destitute of timber iit for 
fuel. During its construction, however, \nrge deposits of 
coal, of excellent quahty and easily worked, were discov- 
ered in land along its line from whicli abundant supphes 
could be obtained for the use of the company. The en- 
gineers, appointed to survey the route for the road, re- 
ported the existence of such deposits. In June, 1868, one 
Thomas Wardell made exjilorations for coal in the lands 
of the company, and reported to its managers the informa- 
tion which he had thus acquired, wliich was confirma- 
tory of that previously obtained from tlie engineers. 
A contract was then- entered into between the company 
and himself and one Godfrey, with whom he had become 
associated in business, to fui-nish the company with coal 
required for its use. This contract, which is dated July 
IGth, 1868, stipuhxted for exorbitant prices; and by it all 
the coal lands of the company were leased to Wardell and 
Godfrey for fifteen )'ears. They immediately entered up(ju 
the execution of the contract and liegan work on several 
mines along the line of the road. Soon afterwards God- 
frey transferred his interest in the contract to Wardell. A 
new company was then formed called the Wyoming Coal 
and Mining Company, of which the directors of the Union 
Pacific Railroad Company became the chief shareholders. 
To this company Wardell assigned his contract without 
any consideration. The conqnuiy continued the execution 
of the contract, AYardell acting as its superintendent, sec- 
retary, and general manager, and delivei"edcoal as needed 
to the railroad company up to March, 1874, when the of- 
ficers and agents of that company, by order of its directors, 
took forcible possession of the mines and of the books, 
papers, tools, and other personal property of the coal com- 
pany, which they continued to hold and use. Some 
months after this the two companies, through their direc- 
tors, made a settlement of their matters of difference, b}^ 
which the contract of July 16th, 1868, was rescinded 



2sr) 

and oiu' iiiillioii dollars was allowed to the i-oal coin- 
pany. Of tliis million tlu" railroad t'()in[>any set apart 
and tendered to Wardell one liundivd tlionsand dollars 
for his share, lie, not being satisfied with tli(> settle- 
ment, l)ronglit a snit, in his own nanu', against the rail- 
road eompany, alleging as a reason that a majority of the 
dii'eetors and stoi'khoiders of the eoal c-ompany were also 
directors and stot-kliolders of the I'aih'oad eom[»any, and 
that therefore he could ohtain no relief hy a suit in 
the name of the coal eompany. lie prayed that an 
account ndght be taken of the anvount due for the 
coal delivered to the railroad com[»any, for drawback on 
freight from the date of the contract, for coal extracted 
from the nunes since their seizure and for the proi)erty of 
the coal company taken, and for the damages arising fi'om 
the attempted abrogation of the contract. To this suit the 
railroad company set up, among other tilings, that tlie con- 
tract of July Kith, 1<S()8, was a fraud upon the company, 
that it was made on the part of the executive comnnttee 
of its ])oard of directoi's, a majority of wliom wei'e, by pre- 
vious agreement, to be eipially interested witli the con- 
tractors, and for that I'eason its terms were made so fa\'or- 
able to tliem and unfavorable to tlie company, as to enable 
the former to make large gains at tiie expense of the lat- 
ter; and that the organization of the coal company was a 
mere device to enable those directors to participate in the 
profits; and also that a settlement had been made between 
the two companies of all their transactions. 

The court below^ field that the contract of July 1(J, 18(38, 
w'as a- fraud upon the companj", but that the complainant 
was, a[iart from it, entitled to some compensation for his 
time, skill, and services wdiile engaged in taking out the 
coal, with the return of tlie money actually invested and 
compensation for its use, the amount to be credited with 
w^hat he had actually received out of the business; and 
that at his election he coidd ha\'e an accounting U[)on that 
fiasis or take the one hundred thousand dcdlaj's tendered 



286 

by the company. Of the alternatives thus offered he 
elected to take the one hundred thousand dollars instead 
of having the accounting mentioned, but appealed to the 
Supreme Court from the decree, contending that the con- 
tract itself was valid, and that he was entitled to an ac- 
counting upon that hypothesis, but the judgment was there 
afhrmed. Of the contract and of the obligations of the di- 
rectors of the railroad company, that Court, speaking 
through Judge Field, said as follows : 

" The evidence in the case justifies tlie conclusion of the court below 
as to the nature of the contract of July 16th, 1868. It was evidently 
drawn more for the benefit of the contractors than for the interest of the 
company. The extent, value, and accessibility of the coal deposits along 
the line of the road of the company were, as stated above, well known at 
the time to its directors, having the immediate control and management 
of its business. Wardell, the principal contractor, informed those with 
whom he chiefly dealt in negotiating the contract, that coal could be de- 
livered to the company at a cost of two dollars per ton, yet the contract, 
which was to remain in force fifteen years, stipulated that the company 
should pay treble this amount per ton for the coal the first two years, two 
and a half times the amount for the next three years, twice the amount 
for the following four years, and one-half more for the balance of the time. 
And lest these rates might prove too little, the contract further provided 
that the sum paid should not be less than ten per cent, added to the cost 
of the coal to the contractors. These terms and the leasing of all the 
coal lands of the company for fifteen years to those parties upon a royalty 
of twenty-five cents a ton for the first nine years, and without any royalty 
afterwards if the price of the coal should be reduced to three dollars, 
with the stipulation to provide side-tracks to the mines, and also to fur- 
nish cars for transportation of coal for general consumption, and after 
charging them only what was charged to others, to allow them a draw- 
back of twenty-five per cent, on the sums paid, gave to them a contract 
of the value of millions of dollars. These provisions would of them- 
selves justly excite a suspicion that the directors of the railroad com- 
pany, who authorized the contract on its behalf, had been greatly de- 
ceived and imposed upon, or that they were ignorant of the cost at which 
the coal could be taken from the mines and delivered to the company. 
But the evidence shows that those directors were neither deceived nor 
imposed upon, nor were they without information as to the probable 
cost of taking out and delivering the coal. And what is of more im- 
portance, it shows, as alleged, their previous agreement with the con- 
tractors for a joint interest in the contract, and, in order that they might 
not appear as co-contractors, that a corporation should be formed in 
which they should become stockholders, and to which the contract should 



287 

be assigned; and that this agreement was carried ont 1)y tlie suhseqnent 
ibrmatiou of the Wyoming Mining and Coal Comi)aiiy and their taking 
stock in it. This matter was so well understooil tliat when tlie eon- 
tractors commenced their work in developing the mines and taking 
out the coal, they kept their acconnts in the name of the proywsed 
company, though no such company was organized until months after- 
wards. 

" It hardly requires argument to show that the scheme thus designed to 
enable the directors, who authorized the contract, to divide with the 
contractors large sums which should have been saved to the company, 
was utterly indefensible and illegal. Those directors, constituting the ex- 
ecutive committee of the board, were clothed with power to manage the 
atfairs of the company for the benefit of its stockholders and creditors. 
Their character as agents forbade the exercise of their powers for their 
own personal ends against the interest of the company. They were 
thereby precluded from deriving any advantage from contracts made by 
their authority as directors, except through the company for which they 
acted. Their position was one of great trust, and to engage in any matter 
for their personal advantage inconsistent with it was to violate their duty 
and to commit a fraud upon the company. 

" It is among the rudiments of the law that the same person cannot 
act for himself and at the same time, with respect to the same matter, 
as the agent for another whose interests are conflicting. Thus a person 
cannot be a purchaser of property and at the same time the agent of the 
vendor. The two positions impose dift'erent obligations, and their union 
would at once raise a conflict between interest and duty ; and ' consti- 
tuted as humanity is, in the majority of cases duty would be overcome 
in tlie struggle.'— (Marsh vs. Whitmore, 21 AVallace, 183.) The law, 
therefore, will always condemn the transactions of a party on his own 
behalf when, in respect to the matter concerned, he is the agent of others, 
and will relieve against them whenever their enforcement is seasonably 
resisted. Directors of corporations, and all persons who stand in a fiduci- 
ary relation to other parties, and are clothed with power to act for them, 
are subject to this rule; they are not permitted to occupy a position 
which will conflict with the interest of parties they represent and are 
bound to protect. They cannot, as agents or trustees, enter into or au- 
thorize contracts on behalf of those for whom they are appointed to act, 
and then personally participate in the benefits. Hence all arrangements 
by directors of a railroad company, to secure an undue advantage to 
themselves at its expense, by the formation of a new company as an aux- 
iliary to the original one, with an understanding that they, or some of 
them, shall take stock in it, and then that valuable contracts shall be 
given to it, in the profits of which they, as stockholders in the new com- 
pany, are to share, are so many unlawful devices to enrich themselves to 
the detriment of the stockholders and creditors of the original company, 
and will be condemned whenever properly brought before the Courts for 



1>SS 

comidcration. — (Gveiit Lnxt'in1)t)urg Co. vs. ]M;igiiny, 2.") Beavnn, 586 ; " 
Benson vs. Heathorn, 1 Young & Coll., 326 ; Flint & Pere Marquette Ji. 
E. Co. vs. Dewey, 14 Michigan, 477 ; European & N. American R. R. Co. 
vs. Poor, 59 Maine, *277; and Drary vs. Cross, 7 Wall., 299.) 

" The scheme disclosed here has no feature which relieves it of its 
fraudulent character, and the contract of July 16, 1868, which was an es- 
sential part, of it, must go down with it. It was a fraudulent proceeding 
on the ])art of the directors and contractors who devised and carried it 
into execution, not only against the company, but also against the gov- ' 
ernment, which had largely contributed to its aid by the loan of bonds 
and by the grant of lands. By the very terms of the charter of the com- 
pany live per cent, of its net earnings were to be paid to the government. 
Those earnings were necessarily reduced by every transaction which 
took from the company its legitimate profits. It is true that some of the 
directors, who approved of or did not dissent from the contract, early 
stated that they held their stock in the coal company for the benefit of 
the railroad company, and transfen-ed it, or were ready to transfer it, to 
the latter ; but the majority expressed such a purpose only when the 
character and terms of the contract became known and they were desir- 
ous to screen themselves from censure for their conduct. 

" The complainant, therefore, can derive no benefit from the contract 
thus tainted, or sustain any claim against the railioad company for its 
repudiation." — (13 Otto.j 



The Use of KuNNiNa Waters on the Ptblic Lands. 

Wlien it was known that gold liad been discovered in 
California, and existed in such form and quantity as to re- 
ward individual exploration and labor, an immense immi- 
gration set in foi- the country. Gold-seekers came from 
all parts of tlie world, and in such numbers as to swell 
the population in three or four years from a few tliou- 
sands to over half a million. A great number of these— 
perhaps one-third — remained in the cities and engaged in 
commerce, or settled upon the fertile binds in the valleys 
and cultivated the soil, or raised cattle from the rich pas- 
turage afforded. The greater portion spread over the 
mineral region, which was chiefly in the Sierra Xevada 
Mountains. The title to the whole of the lands compos- 
ing tills region was in the United States, and no law had 



:28!i 

been passed which provided i'or their occnpatioii and [>ur- 
cliase. The riii'lits wliich the miners asserted were merely 
possess(^ry. and to protect each other in tiicir psssession 
and in extracting;- gold from the hinds, they were com- 
pelled to adopt certain rules foi- their government. The 
character, justice, and wisdom of the rules established by 
them in dilferent localities, are fully stated in an opiinon 
delivered by Judge Field in the Supreme Court, in the 
case of Jennison vs. Kirk, (8 Otto, 457,) an extract of 
which is given on pages 6, 7, and 8 of this volume. 

In working the mines water was a necessity; without it 
gold could not be separated from the earth or rock in 
which it was buried. The ^loctrines of the common law 
relating to the rights of riparian proprietors were not ap- 
plicable to the conditions and wants of the miners. They 
accordingly adopted rules for the regulation of the pos- 
session and use of watei', as they had done for the posses- 
sion and working of their mining claims. These regula- 
tions controlled the disposition of properties of the value 
of many millions. 

The same general system of regulations, so inti'insically 
just w^ere they deemed, was established by iinnei's in the 
territor}' east of the Sie'rra jSTevada Mountains — in I^Te- 
vada, Montana, and Idaho; indeed, wdierever the precious 
metals were found. Questions arising under them were 
constantly before the local Courts, and in some instances 
found their way to the Su})reme Court of the United States. 
In Atchison vs. Peterson,* which was before that Court 
in 1874, the question was presented as to the right, from 
prior appropriation, to the use for mining purposes of the 
water of a stream without deterioration in quality and 
value. The suit was brought to restrain the defendants 
from carrying on certain mining work on a creek in the 
Territory of Montana, on the alleged ground that the 
water, diverted by the complainants from the stream for 
mining purposes, was, by such work, thus deteriorated. 



'■■ 20 Wall.. 50- 



290 

TliG coiuiiliunaiits were tlie owners of two ditches or canals, 
consti-ucted at a cost of |117,000, l)y which the creek was 
tapped and the water diverted and convej-ed a distance of 
eighteen miles to certain mining districts, and there sold 
to miners. At a point about fifteen miles above the place 
where the creek was thus tapped the defendants were work- 
ing mining ground, which they had acquired subsequently 
to the time when the complainants commenced the con- 
struction of the ditches. In some places in their work the 
defendants washed down tlie earth from the side of the 
hills bordering on the stream; in other places they exca- 
vated the earth, and threw such portions as were supposed 
to contain gold into sluices, upon which the w^ater was 
turned. The earth from the washings on the hillsides, 
and from the sluices, was carried into the creek and af- 
fected its whole current, filling the water to some extent 
with mud, sand, and sediment. The evidence as to the 
extent of the deterioration was conflicting, but tlie great 
preponderance of it was to the efiect that the injury in 
quality from this cause, at the point where the complain- 
ants tapped the stream, was so slight as not, in any mate- 
rial extent, to impair the value of the water for mining, 
or to render it less salable to the miners at the places 
where it was carried. 

The District Court denied the injunction, and the Su- 
preme Court of the Territorj^ affirmed the decree, and the 
case was taken to the Supreme Court. In affirming the 
decree that Court, speaking through Judge Field, said as 
follows: 

" By the custom which has obtained aniong miners in the Pacific States 
and Territories, where mining for the precious metals is had on the pub- 
lic lands of the United States, the first appropriator of mines, whether in 
placers, veins, or lodes, or of waters in the streams on such lauds for min- 
ing purposes, is held to have a better right than others to work the mines 
or use the waters. The first appropriator who subjects the property to 
use, or takes the necessary steps for that purpose, is regarded, except as 
against the government, as the source of title in all controversies relating 
to the property. As respects the use of water for mining purposes, the 
doctrines of the common law declaratory of the rights of riparian owners 



291 

were, ;i1 an early tlay, after tlic discDvcry of <;'(il(l, I'ound to lie iiiaiiplica- 
ble or applicable only ill a very limited extent lo tiie necessities o I' llie 
miners, and iiuule(iuate to tlieir protection. By the common law tlie ri- 
l»arian owner on a stream not navigable, takes the hind to the centre of 
the stream, and such owner has the right to the use of the water Ilovvin<; 
over the land as au incident to his estate. And as all such owners on the 
same stream liave an equality of right to the use of the water, as it nat- 
urally flows, in quality, and without diminution in quantity, except so 
far as such diminution may be created by a reasonable use of the water 
for certain domestic, agricultural, or manufacturing purposes, there could 
not be, according to that law, any such diversion or use of the water by 
one owner as would work material detriment to any other owner 
below him. Nor could the water by one owner be so retarded in its flow 
as to be thrown back to the injury of another owner above him. ' It is 
wholly immaterial,' says Mr. Justice Story, in Tyler vs. Wilkinson, 
' whether the party be a proprietor above or below in tlie course of the 
river; the right being common to all the proprietors on the river, no one 
lias a right to diminish the quantity which will, according to the natural 
<'urreut, flow to the proprietor below, or to throw it back upon a proprie- 
tor above. This is the necessary result of the perfect equality of right 
among all the proprietors of that which is common to all.'* ' Every pro- 
prietor of lands on the banks of a river,' says Kent, 'has naturally an 
e((ual right to the use of the water which flows in the stream adjacent to 
his lands, as it was wont to run (carrere solehat) without diminution or 
alteration. No proprietor has a right to use the water to the prejudice 
of other proprietors above or below him, unless he has a prior right to 
divert it, or a title to some exclusive enjoyment. He has no property in 
the water itself, but a simple usufruct while it passes along. Aqua cur- 
rit et debet ctirrere ut currcre solebat. Though he may use the water while 
it runs over his land as an incident to the land, he cannot unreasonably 
detain it or give it another direction, and he must return it to its ordinary 
chaunel when it leaves his estate. Without the consent of the adjoining 
proprietors he cannot divert or diminish the quantity of the water which 
would otherwise descend to the proprietors below, nor throw the water 
back upon the proprietors above witliout a grant or an uninterrupted en- 
joyment of twenty years, which is evidence of it. This is the clear and 
settled doctrine on the subject, and all the difficulty which arises consists 
in the application.'! 

" This equality of right among all the proi)rietors on the same stream 
would have been incompatible with any extended diversion of the ^\■ater 
l)y one proprietor, and its conveyance for mining pui'poses to points from 
which it could not be restored to the stream. But the government 
being the sole proprietor of all the public lands, whether bordering on 
streams or otherwise, there was no occasion for the application of the com- 

* 4 Mason, :?79. f-^ Kent's C'oium., 439. 

20 



292 

inou-law doctrine of riparian proprietorship with respect to the waters of 
those streams. The government, by its silent acqniescence, assented to 
the general occupation of the public lands for mining, and, to encourage 
their free and unlimited use for that purpose, reserved such lands as 
were mineral from sale and the acquisition of title by settlement. And 
he who first connectshis own labor with property thus situated and open to 
general exploration, does, in natural justice, acquire a better right to it.s 
use and enjoyment than others who have not given such labor. So the 
miners on the public lands throughout the Pacific States and Territories 
by their customs, usages, and regulations everywhere recognized the in- 
herent justice of this principle, and the principle itself was at au early 
period recognized by legislation and enforced by the courts in those States 
and Territories. In Irwin vs. Phillips,* a case decided by the Supreme 
Court of California in January, 1855, this subject was considered. After 
stating that a system of rules had been permitted to grow up with re- 
pect to mining on tlie public lands by the voluntary action and assent of 
the population, whose free and unrestrained occupation of the mineral 
region had been tacitly assented to by the federal government, and heartily 
encouraged by the expressed legislative policy of the State, the Court 
said : ' If there are, as must beadmitted, numy things connected with this 
system which are crude and undigested, and subject to fluctuation and 
dispute, there are still some which a universal sense of necessity and 
propriety have so firmly fixed as that they have come to be looked upon 
as having the force and, effect of res «(//Mrfic«/rt. Among these the most 
important are the rights of miners to be protected in their selected local- 
ities, and the rights of those who, by prior appropriation, have taken the 
waters from their natural beds, and by costly artificial works have con- 
ducted them for miles over mountains and ravines to supply the neces- 
sities of gold diggers, and without which the most important interests of 
the mineral region would remain without development. So fully recog- 
nized have become these rights, that without any specific legislation con- 
ferring or confirming them, they are alluded to and spoken of in various 
acts of the Legislature in the same manner as if they were rights which 
had been vested by the most distinct expression of the will of the law- 
makers.' 

" This doctrine of right by prior appropriation, was recognized by the 
legislation of Congress in 1866.t The act granting the right of way to 
ditch and canal owners over the public lands, and for other purposes, passed 
on the 26th of July of that year, in its ninth section declares ' that when- 
ever, by priority of possession, rights to the use of water for mining, 
agricultural, manufacturing, or other purposes, have vested and accrued, 
and the same are recognized and acknowledged by the local customs, laws, 
and decisions of courts, the possessors and owners of such vested rights 
shall be maintained and protected in the same.' 

* 5 Cal,, 140, 1 14 Stats, at Large, 253. 



0()0 

"Tlic riu'lit 1(( wilier ))y prior ;xpi>r(ii)ii;i1 ion, (liiis r(H'oi;!ii/.c(l and cstali- 
lislicd .IS Hr" law ol' minors on the mineral lands of Die imlilie domain, 
is limited in every ease, in (inantity and (|nali1y, hy tlie uses for wliicli 
the appropriation is made. A dilVerenl use of llie water sul)se(|uenl ly 
does not aiitect the riuht ; that is subject, to the same limitations, wli;il- 
ever the U.se. The appropriation does not eonl'er sueli an absolute ri.nlit 
to the body of the water diverted that the owner can allow it, after its 
diversion, to run to waste, and prevent others from usin<i- it for mininji 
or other leaitimate jturposes; nor does it confer such a rij;ht that he can 
insist upon the flow of the water without deterioration in (piality, wliere 
such deterioration does not defeat nor inipair the uses to which the water 
is applied. 

"Such was the purport of the ruling of the Supreme Court of Cali- 
fornia in Butte Canal and Ditch Company vs. Vaughn,* where it was 
held that the first appropriator had only the right to insist that the water 
sliould be subject to his use and enjoyment to the extent of his original 
appropriation, and that its quality should not be impaired so as to de- 
feat the purpose of that appropriation. To this extent, said the Court, 
his rights go, and no farther; and that, in subordination to them, subse- 
quent appropriators may use the channel and waters of the stream, and 
mingle with its waters other waters, and divert them as often as they 
choose ; that whilst enjoying his original rights, the first appropriator had 
no cause of complaint. In the subsequent case of Ortman vs. Dixon f 
the same Court held to the same purport, that the measure of the right 
of the first appropriator of the water, as to extent, follows the nature of 
the appropriation, or the uses for which it is taken. 

" What diminution of quantity, or deterioration in quality, will consti- 
tute an invasion of the rights of the first appropriator, will depend upon 
the special circumstances of each ca.se, considered with reference to the 
uses to which the water is applied. A slight deterioration in quality 
might render the water unfit for drink or domestic purposes, whilst it 
would not sensibly impair its value for mining or irrigation. In all con- 
troversies, therefore, between him and parties subsequently claiming the 
water, the question for determination is neces.sarily whether his use and 
enjoyment of the water, to the extent of his original appropriation, have 
been impaired by the acts of the defendant. But whether, upon a peti- 
tion or bill asserting that his prior rights have been thus invaded, a Court 
of Equity will interfere to restrain the acts of the party complained of, 
will depend upon the character aud extent of the injury alleged, whether 
it be irremediable in its nature, whether an action at law would afford 
adequate remedy, whether the parties are liable to respond for the dam- 
ages resulting from the injury, and other considerations which ordinarily 
govern a Court of Equitj' in the exerctise of its preventive process of in- 
junction." 

* 11 Cal., 14.3. See, also, I.obdell vs. Simpson, 2 Nev., 274. 
1 1?, Cal., :«. 



294 

The Court then proceeded to apply the principles thus 
stated to tlie sohition of the questions presented, and 
affirmed the decree. 

In Basev vs. Gallagher * the question arose wliether a 
right to running waters on the public lands of the United 
States for purposes of irrigation could be acquired by prior 
appropriiition as against parties not having the title of the 
government. The District and Supreme Courts of Mon- 
tana having sustained the affirmative of this question, the 
case in which it arose was brought before the Supreme 
Court of the United States. In giving its judgment the 
Court referred to Atchison vs. Peterson, above mentioned, 
which was decided at the same term, stated what had been 
held in that case, and then, speaking through Judge Field, 
said as follows: 

"The views there expressed and the rulings made are equally applica- 
ble to the use of water on the public- lauds for purposes of irrigation. 
No distinction is made in those States and Territories [of the Pacific 
Coast] by the custom of miners or settlers, or by the Courts, in the rights 
of the first appropriator from the use made of the water, if the use be a 
beneficial one. 

" In the case of Tartar vs. The Spring Creek Water and Mining Com- 
pany, decided in 1855, the Supreme Court of California said ; ' The cur- 
rent of decisions of this Court go to establish that the policy of this 
State, as derived from her legislation, is to permit settlers in all capacities 
to occupy the i)ublic lands, and by such occupation to acquire the right 
of undisturbed enjoyment against all the world but the true owner. In 
evidence of this, acts have been passed to protect the possession of agri- 
cultural lands acquired by mere occupancy ; to license miners; to pro- 
vide for the recovery of mining claims ; recognizing canals and ditches 
which were known to divert the water of streams from their natural 
channel for mining purposes ; and others of like character. This pol- 
icy has been extended equally to all pursuits, .snd no partiality for one 
over another has been evinced, except in the single case where the rights 
of the agriculturalist are niade to yield to those of the miner where 

gold is discovered in his land The policy of the exception is 

obvious. Without it the entire gold region might have been inclosed 
in large tracts, under the pretence of agriculture and grazing, and event- 
ually what Avould have sufficed as a rich bounty to many thousands 
would be reduced to the proprietorship of a few. Aside from this the 
legislation and decisions have been uniform in awarding the right of 

* 30 Cal., 671, 



295 

peac(nvl)le enjoyment to tlie first occupant, cither of the kuul or of any- 
thing incident to the land.'* 

"Ever since that decision it has heen hold generally thioughout tlie 
I'acific States and Territories that the right to water by prior appropria- 
tion lor any beneficial purpose is entitled to protection. AYater is di- 
verted to propel machinery in flour-mills and saw-niills, and to irrigate 
land for cultivation, as well as to enable miners to w ork their mining 
claims; and in all such cases the right of the first appropriator, exercised 
within reasonable limits, is respected and enf(jrced. We say within rea- 
sonable limits, for this right to water, like the right by prior occupancy 
to mining ground or agricultural land, is not unrestricted. It must be 
exercised with reference to the general condition of the country and the 
necessities of the people, and not so as to deprive a whole neighborhood 
or comnuinity of its use, and vest an absolute monopoly in a single indi- 
vidual. The act of Congress of 1866 recognizes the right to water by 
prior appropriation for agricultural and manufacturing purposes, as well 
as for mining. Its language is : 'That whenever by priority of posses- 
sion rights to the use of water for mining, agricultural, manufacturing, 
or other purposes have vested and accrued, and the same are recognized 
and acknowledged by the local customs, laws, and decisions of courts, 
the possessors and owners of such vested rights shall be maintained and 
protected in the same.' 

" It is evident that Congress intended, although the language used is 
not happy, to recognize as valid the customary law with respect to the 
use of water, which had grown up among the occupants of the public 
land under the peculiar necessities of their condition ; and that law may 
be shown by evidence of the local customs, or by the legislation of the 
State or Territory, or the decisions of the courts. The union of the three 
conditions, in any particular case, is not essential to the perfection of the 
right by priority ; and in case of conflict between a local custom and a 
statutory regulation, the latter, as of superior authority, must necessarily 
control." 

* Per Heydeufeldt, J., 5 California, 397. 



296 



CASES IN THE CIRCUIT COURT OF THE UNITED 
STATES FOR THE DISTRICT OF CALIFORNIA. 



As mentioned in the preceding pages, Judge Field, upon 
his appointment, was assigned to the circuit composed of 
the Pacific States, Cahfornia and Oregon, to which Nevada, 
on her hecoming a State, was added. It was his duty to 
attend the sessions of the Supreme Court at Washington 
in the winter, and to hold the Circuit Court in his circuit 
in summer. Until tlie passage of the act of 1869, pro- 
viding for the appointment of Circuit Judges, the Circuit 
Court, in his absence, was held by the District Judge of 
the district. Since then he has only been required to at- 
tend a term in each district of his circuit once in two 
years. He has, however, visited the circuit every year, 
until the present one (1881), since his appointment, and 
has generally held court in all its districts. 

The cases brought befoi'e the Circuit Court liave not 
only been of the variety and importance, which have gen- 
erally characterized the litigation in the Federal Courts 
of other circuits, but many of them have had special inter- 
est, arising either from accidental circumstances or circum- 
stances peculiar to the coast. 

United States vs. Greatiiouse. 

At the first term of the circuit at which Judge Field 
presided, after his appointment, the case of the United 
States vs. Greathouse and others, was tried. Growing out 
of the civil war, then iiendinu', it excited unusual interest 



297 

throUi>-lK)Ut the coutitrv. Its liistory is brie'tly this. In 
March, 1863, tho schooner /. M. Chrpmai) was seized 
in the harhov of San Fi-anciscD \)y \hr Tnited States rev- 
enue ortieers, whih^ saiHni;-, or al)ont to sail, on a. cruise, in 
the service of the Confederate States, against the connnerce 
of the United States, and the leadei's of the expedition, 
named Greatliouse, Harpending, Ruhcry,La.w, and Libby, 
were indicted under the act of Congress of July ITtli, 
1862, for engaging in and giving aid and conil'ort to the 
then existing rebeHion against the government of the 
United States. Tlie case was called for trial at the Octo- 
ber term of 1868. A nolle pro^iciiid was entered as to Law 
and Libl)y, and tliey l)ecame witnesses for the prosecution. 

Their testimon}' and that of others showed that Har- 
pending, a native of Kentucky, and Rul)ery, a native of 
England, had for some time contemplated the titting out 
of a privateer at San Francisco, for the purpose of taking 
several of the mail steamships plying between that port 
and limama, and other vessels. With this object in view, 
Ilarpending had gone across the country to Richmond, 
A'irginia, and procured from Jefferson Davis, the Presi- 
dent of the Ccmfederate States, a letter of marque, au- 
thorizing him to prey upon the commerce of the United 
States, and to burn, board, or take any vessel of their cit- 
izens; and also a letter of instructions directing him how 
to act, and containing the form of a bond, in case any 
prize taken should be bonded. Upon his return to San 
Francisco he and Ruber}'- made arrangements for the pur- 
chase of a vessel which would suit their purpose; but these 
arrangements afterwards fail^ed, on account of the dishonor 
of the drafts drawn for the purchase-money by Rubeiy, 
and the consequent want of funds. They also niade a 
voyage to Cerros Island for the purpose of examining into 
its fitness as a depot and as a rendezvous whence to attack 
the steamers going to Panama. 

In Januar}^ or February, 1863, Ilarpending made the 
acquaintance, at San Francisco, of Law, a ship captain ; 



298 

broached to liini the project of fittinii; out a privateer; 
8tated what had been done; exhibited his letter of marque 
and instructions; sohcited him to enter into the enterprise 
and assist in procuring a vessel; and said, among other 
things, that if he had succeeded in carrying out his pre- 
vious arrangements, he could easily have taken three of 
the mail steamers. Law agreed to take part in the scheme, 
and soon afterwards pointed out the schooner /. M. Chap- 
man, a vessel of about ninety tons burden and a fast sailer, 
as well adapted for the intended cruise. Several meetings 
in reference to the subject took place between Harpend- 
ing, Rubery, Law, and Greathouse, (who had been intro- 
duced 1)y Ilarpending to Law as a capitalist,) and the re- 
sult Avas that Greathouse purchased the schooner, and fur- 
nished money to procure arms, ammunition, and stores, 
and to engage a mate and a crew. The next morning 
Law took charge of the schooner, moved it to a wharf at 
the city front, informed Libby of the project, and induced 
him to go as mate, and engaged four seamen and a cook. 
All tills time Greathouse gave out that he was acting in 
the interest of the " Liberal Party " in Mexico, and under 
this pretext, arms and ammunition were purchased, con- 
sisting of two brass rifled twelve-pounders, shells, fuse, 
powder, muskets, pistols, lead, caps, and knives. These 
were packed in cases marked '^ oil mill " and " ma- 
chinery," and shipped as quietly as possible, and there was 
also shipped a number of uniforms, such as are usually 
w^orn by men on vessels of war. A large amount of lum- 
ber was also purchased and shipped, with whicli to con- 
struct berths, a prison room, and a lower deck. The in- 
tention of the parties was to sail from San Francisco on 
Sunday the 15th of March, 1863, to the island of Guada- 
lupe, which hes some three hundred miles off the coast of 
California; there" land Ilarpending and the flighting men, 
who Averc to be sliipped on the night of Saturday the 14th; 
thence proceed to Manzanillo, and discharge such freight 
as mii;-ht betaken; nu^n return t.. (iuadaliiiH'. and (if tlie 



RclnxMier lor privateoring puri»().sLvs; then imtceL-d apiiii to 
Maii/anillo, wliere the men Avere to be enrolled and their 
names inserted in the letter of marque, a eo]iy of which 
was thereupon to be forwarded to the i;-overinnent ol" tlu; 
Confederate States. It was their plan first to capture a 
steamer bound from San Francisco to Panama, on its arrival 
at Manzanillo, land its passengers, aiid with the steamer 
thus taken capture a second steamer; next to seize a ves- 
sel from San Franciscc^ then engaged in recovering treas- 
ure from the wreck of the steamer Golden Gate; thence 
to go to the Ohincha Islands, and burn vessels there be- 
longing to citizens of the United States, and theiuH- to 
proceed to the China Sea, and finally into the Fiidian 
Ccean. There they expected to join Admiral Senimes of 
the Confederate ISTavy. In pm-suance of tliis plan, and 
to prevent suspicion, the schooner was " put up " for Man- 
ziinillo. A partial cargo was shipped on board, and Law 
cleared at the custom-house for that port, signing and 
swearing to a false manifest. On the night of March 14th, 
in accordance with the scheme arranged, all the partici- 
pants went on board. Fifteen persons, who had been em- 
})loyed by Ilarpending as privateersmen, were placed in 
the hohl in an open space left for them among the cargo, 
directly under the main hatch. The only person absent 
was Law, who remained on shore with the understanding 
that he should be on hand before morning. It afterwards 
a[)peared that he had became intoxicated, and did not get 
down to keep his appointment until after the schooner had 
been seized. 

During the evening, Rubery had heard rumors that the 
vessel was to be overhauled, and as the morning approached 
and Law^ did not appear, he proposed sailing without him. 
At daylight. Law being still absent, Libby cast off the 
lines, and began working the schooner out from the wdiarf 
into the stream. The main-sail was partially hoisted; but 
no sooner had the whai'f been left, than two boats w^ere 
observed [.utting off from the United States sloop-of-war 



300 

Cyane, then lying at anchor in the bay. As they headed 
for the schooner, Libby, pointing at them, said to Great- 
house that they were after them. Rul)ery then insisted on 
running up the sails, but Libby replied that there was no 
wind, and it would be useless. In a few minutes after- 
guards the schooner was boarded and seized by the officers 
of tlie United States, and the enterprise nipped in the 
bud. Scarce]}' had the seizure been effected when Law 
made his appearance on board and was arrested with the 
others. 

The revenue ofiicersof the United States had been aware 
of the intended enterprise from an early period, and main- 
tained a constant watch on the vessel night and day. 

They knew the character of the cargo, which had been 
carefully noted by the watchmen; were aware of the ship- 
ment of arms, and saw the cases with their false marks. 
On the Saturday afternoon when the schooner was cleared 
for Manzanillo, they increased the watch, chartered a steam- 
tug, and put policemen on board. They also made arrange- 
ments for the reception and coniinement of prisone-rs at 
the United States fortifications on Alcatraz Island, and 
procured the two boats with their crews from the war-ship 
Cyane, to act in conjunction witli them on a given signal. 
In the evening, the revenue officers themselves went on 
board the tug, proceeded to a wharf next that at which the 
/. M. Chapmait lay, and watclied the men going on board. 
When the schooner cast off its lines at daylight and headed 
out into the stream, the boats from the Cyane put off and 
l)oarded it according to previous arrangement; and at the 
same time the tug steamed up. Greathouse and Libby 
were on deck; the others were below. Fifteen men were 
found in the hold under the hatch, besides two sailors, who 
had been placed there over night to prevent them from 
leaving the vessel. A search being instituted for papers, 
a number of scraps, some torn, some chewed, and some 
partially burned, were found strewn about the hold. The 
two sailors confined testified that some of the paify had 



mi 

oni[il(iyc'il llie tiiiio iiiterwniiii;- lu'twcou l!u' Koui'diiig of 
llie vessel and the opeiiiiiu' of the liateliway in destroying 
papers. Loaded [)istolsand bowie-knives were found stowed 
away in the interstices between the packages of the cargo. 
In thv' baggage of Harpcnding and Ruhery were found, 
among other papers, a proclamation to the people of Cali- 
iornia to throw otl' the authority of the United States; a 
plan for the capture of the United States forts at San Fran- 
eisuo, and particularly Aleatra/; also, the form of an oath 
of fidelity to their cause, with an imprecation o\' vengeance 
on all who should prove false. It was shown that some 
of these papers were in the handwriting of I Larpending; 
and Rubery admitted that he and one of the defendants 
had spent some time in preparing the oaths. 

After4:lie seizure and arrest, the prisoners were taken 
to Alcatraz and confined. The schooner was uidoaded, 
and the arms and munitions examined. An army olficer 
testified that, in his o})inion, the schooner might have de- 
stroN'cd a I'anama steamer; but naval officers expressed a 
doubt whether this could have been done. 

The defence offered no testimony, but claimed, among 
other things, that a state of war existed between the United 
States and the Confederate States; that the latter were en- 
titled to, and had in fact received from the former, bel- 
ligerent rights; and that privateering on the part of either 
side was a legitimate mode of warfare, and made those 
engaged amenable onl}- to the laws of war. They also 
claimed that the schooner had not started on her voyage, 
l)ut Inid left the wharf with the intention of anchoring in 
the stream and waiting there for the captain and papers; 
that whatever the ultimate intention might have been, 
there had, in fact, been no commencement of the cruise, 
and that, at any rate, no ofience could have been com- 
mitted until the schooner had reached Manzanillo, and 
been ready to commence hostilities. They finally insisted 
that there could be no treason and no conviction under 
the indictment, for the I'eason that ''aid and comfort'' 
liad not been actuaiU u-iven. 



302 

Tlie trial lasted three weeks. Judge Hoffman of the 
District Court sat witli Judge Field, and each of the judges 
gave their views to the jury, following in that respect the 
practice which -was adopted in some of the early State 
cases in the Circuit Courts, at the close of the last cen- 
tury. — (See Wharton's State Trials, Fries' Case, pages 
584 and 587.) 

In his charge Judge Field defined what constituted 
treason under the Constitution of the United States, fol- 
lowing in that respect the definition of Chief Justice Mar- 
shall in Ex-parte BoUnian and Ex-parte Swartwout, (4 
Cranch, 127,) and commented upon and explained the act 
of July, 1862, under which the indictment was found, and 
then proceeded as follows : 

" The existence of the rehellion is a matter of public notoriety, and 
like matters of general and public concern to the whole country, may bo 
taken notice of by judges and juries without that particular proof Avhich 
is re(iuired of the other matters charged. The public notoriety, the pro- 
clamation of the President, and the acts of Congress are sufficient proof 
of the allegation of the indictment in this respect. The same notoriety 
and public documents are also sufficient proof that the rebellion is or- 
ganized and carried on under a pretended government called the Confed- 
erate States of America. 

"As to the treasonable purposes of the defendants there is no conflict 
in the evidence. It is true the principal witnesses of the government 
are, according to their own statements, co-conspirators with the defend- 
ants, and equally involved in guilt with them, if guilt there be in any of 
them. But their testimony, as you have seen, has been corroborated in 
many of its essential details. You are, however, the exclusive judges of 
its credibility. The Court will only say to you that there is no rule of 
law which excludes the testimony of an accomplice, or prevents you from 
giving credence to it, when it has been corroborated in material particu- 
lars. Indeed, gentlemen, I have not been able to perceive from the ar- 
gument of counsel that the truth of the material portions of their testi- 
mony has been seriously controverted. 

" It is not necessary that I should state in detail the evidence pro- 
duced. I do not propose to do so. It is sufficient to refer to its gen- 
eral purport. It is not denied, and will not be denied, that the evidence 
tends to establish that Harpending obtained from the president of the 
so-(!alled Confederate States a letter of marque — a commission to cruise in 
their service on the high seas, in a private armed vessel, and commit hos- 
tilities against the citizens, vessels, and j^roperty of the United States ; 



tliat liis ('()-(lcrcii(l;iiils and otlicrs onlcicd iiilo a (•(iiispiiacy wil li liiiu 
to purchase and lit out. and aim a vessel, au.l ernise under Ihe sai<l letter 
of marque, in Ihe serviee of llie rehellion : tlial in |.ursuance of Ihe con- 
spiracy they purcha.scd the 8ciiooner J. M. ( iiapUKin ; tluil they puicliased 
cannon, shells, iind ammunition, and tlu; means usually re(iuired in en- 
terprises of that kind, and placed them on hoard the vessel ; that they 
employed men for the management of the vessel ; and that, when every- 
thing was in readiness, they started with the vessel from the wharf, with 
the intention to sail from the port of San Francisco on the arrival on 
board of the captain, who was momentarily expected. Gentlemen I do 
not in-opose to say anything to you ui)on the much disputed (luestions 
whether or not the vessel ever did, in fact, sail from thejiort of San Fran- 
cisco, or whether, if she did sail, she started on the hostile exi)edition. 
In the judgment of the Court they are immaterial, if you Iind the facts 
to be what I have said the evidence tends to establish. 

'" When Hiirpending received the letter of mar(j[ue, with the intention 
of using it, if such be the case (and it is stated by one of the witnesses that 
he represented that he went on horseback over the plains expressly to ob- 
tain it), he became leagued with the insurgents — the conspiracy between 
him and the chiefs of the rebellion was complete ; it was a conspiracy to 
commit hostilities on the high seas against the United States, their author- 
ity and laws. If the other defendants united with him to carry out the 
hostile ex"pedition, they, too, became leagued with him and the insurgent 
chiefs in Virginia in the general conspiracy. The subsequent purchasing 
of the vessel, and the guns, and the ammunition, and the emjiloyment of 
the men to manage the vessel, if these acts were done in futherauce of 
the common design, were overt acts of treason. Together, these acts 
(tomplete the essential charge of the indictment. In doing them the de- 
fendants were performing a part in aid of the great rebellion. They were 
giving it aid and comfort.' 

" It is not essential to constitute the giving of aid and comfort that the 
enterprise commenced should be successful and actually render assistance. 
If for example, a vessel fully ecjuipped and armed in the service of the 
rebellion should fail in its attack upon one of our vessels, and be itself 
captured, no assistance would in truth be rendered to the rebellion ; but 
yet in judgment of law, in legal intent, the aid and comfort would be 
given. So if a letter containing important intelligence for the insurgents 
be forwarded, the aid and comfort are given, though the letter be inter- 
cepted on its way. Thus Foster, in his Treatise on Crown Law, says: 
' And the bare sending money or provisions, or sending intelligence to 
rebels or enemies, which in most cases is the most etfectual aid that can 
be given them, will make a man a traitor, though the money Or intelli- 
gence should happen to be intercepted; for the party in sending it did 
all he could ; the treason was complete on his part, though it had not the 
etfect he intended.' 

" Whenever overt acts have been committed w liich, in their natural 
eon.se(iuence if successful, would encourage and advaiu-e the interests of 



804 

the rt'l)cllioii, ill judgment of law aid and cninrnrt are given. Vrhetlier 
aid and comfort are given— the overt acts of treason being established — 
is not left to the balancing of probabilities ; it is a conclusion of law. 

"If the defendants obtained a letter of raarqne from the president of 
tlie so-called Confederate States, the fact does not exempt them from 
prosecution in the tribunals of the country for the acts charged in the 
indictment. The existence of civil war, and the application of the rules 
of war to particular cases, under special circumstances, do not imply the 
renunciation or waiver by the Federal Government of any of its muni- 
cipal rights as sovereign toward the citizens of the seceded States. 

"As matter of policy and humanity, the government of the United 
States has treated the citizens of the so-called Confederate States, taken 
in open hostilities, as prisoners of war, and has thus exempted them from 
trial for violation of its municipal laws. But the Courts have no such 
dispensing power; they can only enforce the laws as they find them upon 
the statute-book. They cannot treat any new government as having au- 
thority to issue commissions or letters of marque which will atford pro- 
tection to its citizens until the legislative and executive departments 
have recognized its existence. The judiciary follows the political de- 
partment of the government in these particulars. By that department 
the rules of war have been applied only in special cases ; and, notwith- 
standing the application, Congress has legislated in numerous instances 
for the punishment of all parties engaged in or rendering assistance in 
any way to the existing rebellion. The law under which the defendants 
are indicted was passed after captives in war had been treated and ex- 
changed as prisoners of war in numerous instances. 

" But even if full belligerent rights had been conceded to the Confed- 
erate States, such rights could not be invoked for the protection of per- 
sons entering within the limits of States which have never seceded, and 
secretly getting up hostile expeditions against our government and its 
authority and laws. The local and temporary allegiance which every 
one — citizen or alien — owes to the government under which he at the 
time lives, is sufficient to subject him to the j)enalties of treason." — (4 
Sawyer, 470-4.) 

The last part of tins charge is undoubtedly correct, for 
whatever protection the concession of belligerent rights 
may have given to persons engaged in actual warfare on 
the Confederate side, none could be allowed to persons in 
league with them, engaged in getting up hostile expeditions 
within the limits of the States which had never seceded. 
Under no aspect of the law of belligerency could they be 
exempted from prosecution. The extent of protection 
which the concession of bellia'erent ri^'hts o-ives to insur- 



805 

gents iigainst :iii oslnldislicd goN'crmiKMil is st;ilc(l liy tlu' 
Sni)i'oine Convt in Williams vs. Hniliy ((I ( )tt<), 1<S7).— 
See al)u\'i', [»age iU. 

Ilajiitily the great Act of Annu-sly iHoinulgatrd Ity 1 'resi- 
dent dolaison on tlie2r)th()r DcccnilxT, 18(i(S, has renioved 
all gi'onnd for legal accusation against parties engaged in 
the great insurrection against the government of the 
United States. — See language of Jiurke cited ahove at 
page 60, and comments upon it. 

The jury found the defendants guilty, and sentence im- 
posing hoth line and imprisonment was pronounced upon 
them. Hubery was subsequently pardoned by President 
Lincoln at the request of dohn Bright of England. The 
other defendants were subsequently released from im- 
prisonment upon taking the oath prescribed in the procla- 
nuition of President Linc.(dn of Decendier 8, 1863, and 
giving a l)ond foi' thcii' future good l)ehavior. 

United States yr. Knowles. 

This case was also one of special interest. It was tried 
in the Circuit Court in 1864. Knowles was the captain of 
the American ship " Charger," and in April of that year 
one of its sailors, by the name of Swainson, whilst on 
the royjd yard engaged in furling sail, accidentally fell 
overl)oard. The captain refused to stop the vessel and 
lower either of its boats — it had three — or to make any 
attempt to rescue the man, and he was drowned. An in- 
dictment was accordingly found against him, alleging that 
the sailor might have l)een saved had the captain stopped 
his ship and lowered either of its boats and made any at- 
tenq)t to rescue him, and that for his negligence and omis- 
sion in this respect the sailor was drowned, and lience 
charging the captain with murder. At the outset of the 
trial the public prosecutor only asked a verdict for man- 
slaughter. 

Judge Field, after stating the nature of the indictment, 
charged the jury as follows: 



30(j 

"As you will thus perceive, gentleman, tlio eliari^e is that the death of 
Swainson was occasioned by the willful omission of the defendant to 
stop the ship, lower tlie boats, and rescue liim, or to make any attempt 
for liis rescue. In the majority of cases where manslaughter is charged, 
the death alleged has resulted from direct violence on the part of the ac- 
cused. Here the death is charged to have been occasioned by the willful 
omission of the defendant to perform a plain duty. 

" There may be, in the omission to do a i)articular act under some cir- 
cumstances, as well as in the commission of an act, such a degree of crim- 
iuality as to render the offender liable to indictment for manslaughter. 
The law on the subject is this : that where death is the direct and imme- 
diate result of the omission of a party to perform a plain duty imposed 
upon him by law or contract, he is guilty of a felonious homicide. There 
are several particulars in this statement of the law to which your atten- 
tion is directed. 

" In the first place, the duty omitted must be a plain duty, by which I 
mean that it must be one that does not admit of any discussion as to its 
obligatory force; one upon which different minds must agree, or will 
generally agree. Where doubt exists as to what conduct should be pur- 
sued in a particular case, and intelligent men differ as to the proper ac- 
tion to be had, the law does not impute guilt to any one, if, from omis- 
sion to adopt one course instead of another, fatal consequences follow to 
others. The law does not enter into any consideration of the reasons 
governing the conduct of men in such cases, to determine whether they 
are culpable or not. 

" In the second place, the duty omitted must be one which the party 
is bound to perform by law or contract, and not one the performance of 
which depends simply upon his humanity, or his sense of justice or pro- 
priety. In the absence of such obligations it is undoubtedly the moral 
duty of every person to extend to others assistance when in danger; to 
throw, for instance, a plank or rope to a drowning man, or make other 
eflbrts for his rescue, and if such efforts should be omitted by any one 
when they could be made without imperiling his own life, he would, liy 
his conduct, draw upon himself the just censure and reproach of good 
men; but this is the only puuishment to Avhich he would be subjected by 
society. 

" In'the third place, the death which follows the duty omitted must be 
the immediate and direct consequence of the omission. There are many 
cases in the reports in which this doctrine of liability for negligence re- 
sulting in death is asserted. In one case a defendant had been employed 
to give signals to railway trains of obstructions on the road. Having, on 
Ofls occasion, neglected to give the proper signal of an obstruction, a col- 
lision followed, causing the death of a passenger. Tiie negligence was 
held to be criminal and the defendant was convicted of manslaughter.^- 
(Regina vs. Pargeter, 3 Cox C. C, 191.) In another case the defendant 
was employed as the ground bailiff of a mine, and as such it was his duty 



••507 

1o cause llic iniiic to he ventilated, liy direetiiiu air-headiniis to he ])laee(l 
Mliere necessary. By his omission to do this in a iiartieuhn- ]iiaee the 
damp in the mine exploded and several iiersons were killed. Tiie delbnd- 
aut wasindicted for manslan}i;hter, and tlie Coiirtr instructed tlu> jury iiiat 
iftliey were satisfied that it was the ordinary and i)lain duty of the pris- 
oner to cause tlie air-headinj.; to he made in the mine, and that a person 
using reasonahle diligence would liave had it done, and tiiat l)y tlie omis- 
sion the death of the deceased occurred, they should tind the i)risoner 
guilty. — (liegina vs. Karmes, 2 Carrington i^ l\irwin, ;!(iH.) in these 
eases you will perceive that the omission which resulted fatally was of a 
l)lain personal duty, and that the accident was the inuncdialc and direct 
(•onsequence of the omission. 

" Now, in the c.ise of a person falling overhoard from a .ship at sea, 
wliether passenger or seaman, when he is not killed hy the fall, there is 
no question as to the duty of the commander. He is hound, both by law 
and by contract, to do everything, consistent with the safety of tlie ship 
and of the pa.ssengers and crew, necessary to rescue the person overboard, 
and lor that purpose to stop the vessel, lower the boats, and throw to him 
such buoys or other articles which can be readily obtained, that may 
serve to support him in the water until he is reached by the boats and 
saved. No matter what delay in the voyage may be occasioned, or what 
expense to the owners may be incurred, nothing will excuse the com- 
mander for any omi.ssiou to take these steps to save the person overboard, 
provided they can be taken with a due regard to the safety of the ship 
and others remaining on board. Subject to this condition, every person 
at sea, whether passenger or seaman, has a right to all reasonable efforts 
of the commander of the vessel for his rescue in case he .should by acci- 
dent tall or be thrown overboard. Any neglect to make such efforts 
would be criminal, and if followed by the loss of the person overboard, 
when by them he might have been s.ived, the commander would be guilty 
of manslaughter, and might be indicted and punished for that offence. 

" In the present case it is nat pretended that any efforts were made by 
the defendant to save Swainson, nor is the .law as to the duty of tlie com- 
mander, and his liability for omitting to perform it under the conditions 
stated, controverted by counsel. The positions taken in the defence of 
lheaccu.sed are: 1. That Swainson was killed by his fall from the yard; 
'J. That if not killed it would have been impossible to save him in the 
existing condition of the sea and weather ; 3. That to have attempted to 
save him would have endangered the safety of the ship and the lives of 
the crew. If, in your judgment, either of these positions is sustained by 
the evidence, the defendant is entitled to an acquittal. 

" The killing of Swainson fr^m his tall is alleged from tlie distance he 
must have lallen, and the absence of any appearance of subsequent mo- 
tion on his part in the water. The distance was one hundred and ten 
feet, as stated by one of the witnesses from actual measurement. An- 
other witness says that Swain.son .struck tlie water on his back or front : 

21 



808 

a third witnoss states that the feet of Swainson struck the water first, 
hut the ])()sition of the body was somewhat inclined. From the noise 
made in falling the mate was of the opinion that Swainson struck the 
channels on the side of the vessel in his fall. You can judge of the prob- 
abilities of the man being alive after a fall of this kind. If you believe 
from the evidence that he was killed by the fall, that is an end of this 
case, and you need not pursue your inquiries further. But more, if you 
have any reasonable doubt, by which I mean a doubt founded upon a 
consideration of all the circumstances and evidence, and not a doubt rest- 
ing upon mere conjectnre or speculation, whether he was killed by the 
lall, you need not go further. The prosecution proceeds upon the ground 
that he was not thus killed, the district attorney relying upon the general 
presumption of the law that a man known to be alive at a particular 
time continues alive until his death is proved, or some event is shown to 
have happened to him which usually, in the experience of men. proves 
fatal. Tlie fall of a person into the sea from a height of one hundred and 
ten feet is not an event which is necessarily fatal. Nor can it be said 
that in the experience of men it is usually so. Its effect depends very 
much, if not entirely, upon the manner in which the party falling strikes 
the water, and the existence of obstacles breaking the force of the fall. 
The fact, therefore, that the fall of Swainson appears in the evidence pre- 
sented by the prosecution, does not change the presumption of the law 
which I have mentioned. The burden still remains upon the defendant 
of showing that the fall was fatal, or of showing such attending circum- 
stances as to create a reasonable doubt whether such was not the foct. 
You will not take the fall itself as conclusive on this point, but will con- 
sider it in connection with the evidence of the manner in which the party 
fell, and particularly of the manner in which he struck the water in 
falling. 

"If you are satisfied that the fall was not immediately fatal, the next 
inquiry will be whether Swainson could have been saved by any reason- 
able efforts of the captain, in the then condition of the sea and weather. 
That the wind was high there .can be no doubt. The vessel was going, 
at the time, at the rate of twelve knots an hour; it had averaged for sev- 
eral hours ten knots an hour. A wind capable of propelling a vessel at 
that speed would in a few hours create a strong sea. To stop the ship, 
change its course, go back to the position where the seaman fell over- 
board, and lower the boats, would have required a good deal of time, ac- 
cording to the testimony of several witnesses. In the meanwhile, the 
man overboard must have drifted a good way from the spot where he fell. 
To these considerations you will add the probable shock and consequent 
exhaustion which Swainson nrust have experienced from tlie iall, even 
supposing that he Avas not immediately killed. 

" It is not sufficient for you to believe that possibly he might have been 
saved. To find the defendant guilty you must come to the conclusion 
that he would, beyond a reasonable doubt, have bet>n saved if proper efforts 



to .save him had hern soasouably made, and tlial liis dcalli was the con- 
sequence orihe del'enthint'.s negligence in tliis icspccl. r,rsi(hs Ihc (on- 
dition of the weather and sea, you must also lake into consich ration (lie 
character of the boats attached to tlie sliiii. Accordin^i to tlie testimony 
of the mate tliey were small and untit I'or a rough sea. 

" During the trial much evidence was offered as to tlu'. character of tlu> 
defendant as a skillful and able officer and as u humane man. The act 
charged is one of gross inhumanity ; it is that of allowing a sailor falling 
overboard wliilst at work upon the shi]), to perish, without an eftbrt to 
save him, when by proper eftbrts, promptly made, he could have been 
saved. If there be any doubt as to the conduct of the defendant, his 
past life and character sliould have some consideration with you. 

" With these views I leave the case with you. It is one of much inter- 
est, but I do not think that, under the instructions given, you will have 
any difficulty in arriving at a just conchisiou."— (4 Sawyer, 518-2:5.) 

Tlie jmy returned a verdict ol' acquittal. 
XTnited States vs. Smiley. 

Tliis was another case wliicli excited much interest at 
the time. It arose as follows : Tlie steamer Golden Gate 
left San Francisco for Panama on the 21st^ July, 1862, 
with two hundred and forty-two passengers and a crew 
of ninety-six persons. At about five o'clock on the after- 
noon of Sunday, July 27th, while running within three 
and a half miles of the Mexican coast, she was dis- 
covered to be on fire. An examination disclosed that 
the fire had originated between one of the galleys and 
the smoke-stack, and it soon became tipparent that it 
was impossible to save her. She was then immediately 
headed for the shore, and half an hour later struck on a 
shelving beach of sand about two hundred and fifty feet 
from the shore, at a point fifteen miles north of the port 
of Manzanillo. The surf, which was breaking heavily, 
soon swung her stern around so that she lay nearly paral- 
lel with the beach when she went to pieces. At eight 
o'clock of that evening all that remained visible were her 
engines, boilers, and wheel frames. Gf the three hundred 

and thirty-eight souls on board only one hundred and 
forty were saved. The treasure which she carried, aniount- 

ii)o- to one million four hundred and fifty thousand d 



It's 



310 

was sunk about forty feet inside of tlie wreck, where in a 
space of sixty feet square upwards of one million two hun- 
dred thousand dollars were subsequently recovered. 

Soon after the loss of the steamer was known, a vessel 
was fitted out l)y the undei-writers to proceed to the 
scene of disaster and recover whatever was possible of 
the treasure. The parties employed soon returned and 
abandoned tlie idea of finding it. Immediately another 
vessel, the " Active," was sent by a party of capitalists, on 
the same errand, but she returned likewise unsuccessful. 
In December, 1862, another party of capitalists started 
anothor vessel, the schooner " William Ireland," fitted 
with pumps and wrecking appliances and accompanied by 
sub-marine divers, under the command of Ireland, one of 
the projectors of the enterprise. The men in this expe- 
dition succeeded in recovering |S00,000. In August, 1863, 
they again returned to the wreck and were successful in 
recovering seventy-six thousand dollars more, when it was 
believed that any further efi'orts to secure any additional 
amount would be unsuccessful. Afterwards, in Septem- 
ber, 1863, Thomas Smiley and others fitted out another 
expedition with a party of divers and a more complete 
equipment of diving and wu-ecking apparatus, and returned 
in January following, having succeeded in recovering 
$303,000. On a second trip they found thirty-three thou- 
sand more ; and with this voyage all eftbrts in that direc- 
tion were closed. The treasure recovered by Smiley and 
others, was carried in wooden boxes, each containing from 
|500 to $44,000, and was stowed in a room near the stern 
of the ship. The locality where the greater part was found 
was about one hundred and fifty feet from the shore of 
Mexico and in from six to nine feet of water. Beneath 
the water was an equal depth of sand under which was a 
hard clay stratum. On this hard pan beneath the water 
and the sand the treasure boxes lay. 

Before commencing his operations. Smiley had obtained 
from the Mexican government fi license to explore for 



the treasure lost. On liis return to San Franeiseo, elaini 
was made liv shippers for the speeie I'eeovered, hut it was 
not «;iven u]), as the parties eouhl not agree as to tlie 
amount wliieh the reeovering company should retain as 
compensation for the recovery. The result was that ii 
complaint was made against Smiley and others of his com- 
pany, and in March, 1864, they Avere indicted in the Cir- 
cuit Coui't of the Uiiited States for plundering and 
stealing the treasure from tlie (Jolden (Jafe, under the 
ninth section of tlie act of C'ongi'ess of March 3d, 1825, 
which pi'ovides: "That, if any person or persons shall 
plunder, steal, or destroy any money, goods, merchandise, 
or other effects, from or belonging to any ship, or vessel, 
or boat, or raft, which shall be in distress, or which shall 
be wrecked, lost, stranded, or cast away upon the sea, or 
upon any reef, shoal, bank, or rocks of tlie sea, or in any 
other place within the admiralty and maritime jurisdiction 

of the United States," [he] " shall be deemed guilty 

of felony, and shall, on conviction thereof, be punished l)y 
tine, not exceeding five thousand dollars, and imprison- 
ment and confinement to hard labor not exceeding ten 
years, according to the aggravation of the offence," * 

To the indictment a demurrer was interposed on various 
technical grounds. As the expedition conducted by Smiley 
was an o[»en one, after all other elibrts for the recov- 
ery of the treasure had been abandoned, and Smiley was 
a man of previously g(x)d character and standing in the 
community, the indictment was generall}' regarded as })er- 
secution — as an attempt to coerce the treasure from him 
without allowing proper compensation to him and his as- 
sociates for its recovery. The counsel engaged in the ctuse 
appeared to recognize this. It was, therefore, agreed that 
the facts stated above should be deemed admitted, and that 
upon them the following questions should be presented 
to the Court for determination: 1st, Whether the act of 
Congress applied to a case where the taking of the prop- 

* 4 Stat, at Large, p. 116. 



:]12 

erty, of wLicli larceny was alleged, was after the vessel 
had gone to pieces and disappeared; and, 2d, Whether, if 
the act covered such a case, the Circuit Court had juris- 
diction to try the offence charged, it having been com- 
mitted within a marine league of the shore of Mexico; 
with a stipulation that if the Court should be of opinion 
that the act did not apply to the case, or that it had not 
jurisdiction to try the otFence charged, the demurrer should 
. be sustained. Upon this stipulation the questions were 
argued. In disposing of them tlie Court said, speaking 
through Judge Field: 

" We iire not prepared to decide tliat the statute does not apply to a 
case where the vessel has gone to pieces, to which the goods belonged of 
which larceny is alleged. It would fail of one of its objects if it did not 
extend to goods, which the officers and men of a stranded or wrecked ves- 
sel had succeeded in getting ashore, so long as a claim is made by them 
to the property, though before its removal the vessel may have been 
broken up. We are inclined to the conclusion that, until the goods are 
removed from the place where landed, or thrown ashore, from the stranded 
or wrecked vessel, or cease to be under the charge of the officers or other 
parties interested, the act would apply if a larceny of them were committed, 
even though the vessel may in the meantime have gone entirely to pieces 
and disappeared from the sea. But in this case the treasure taken had 
ceased to be under the charge of the officers of the ' Golden Gate,' or of 
its underwriters, when the expedition of Smiley was fitted out, and all 
efforts to recover the property had been given up by them. The treas- 
ure was then in the situation of derelict or abandoned property, which 
could be acquired by any one who might have the energy and euterprise 
to seek its recovery. In our judgment the act was no more intended to 
reach cases where property thus abandoned is recovered, than it does to 
reach property voluntarily thrown into the sea, and afterwards fished 
from its depths, 

" But if the act covered a case where the property was recovered after 
its abandonment by the officers of the vessel and others interested in it, 
we are clear that the Circuit Court has not jurisdiction of the offiince 
here charged. The treasure recovered was buried in the sand several feet 
under the water, and was within one hundred and fifty feet from the 
shore of Mexico. The jurisdiction of that country over all offences com- 
mitted within a marine league of its shore, not on a vessel of another 
nation, was complete and exclusive. 

" Wheaton, in his treatise on International Law, after observing that 
' the maritime territory of every Rtate extends to the ports, harbors, bays, 
and mouths of rivers and adjacent parts of the sea inclosed by headlands. 



bolon^iiig to the same State,' says: ' Tlie jiciieral UKage of nations 
siilKMiidds to this extent of territorial jurisdicl ion a distance of a marine 
ieajiue, or as far as a caTinon-shot will reach from the, shore, along all the 
coasts of the State. Within these limits its rights of juoijerty and terri- 
torial jurisdiction are absolute, and exchuh; those of every other nation.' 
—(Part 2, Chap. 4, Section 6.) 

"Thecriminal jurisdiction of the government oftlie I'niled States — that 
is, its jurisdiction to try parties for offences committed against its laws- 
may in some instances extend to its citizens everywhere. Thus, it may 
])unish for violation of treaty stipulations by its citizens abroad — for of- 
fences committed in foreign countries where, by treaty, jurisdiction is 
conceded for that purpose, as in some cases in China and in the Kar- 
bary States ; it may provide for offences committed on deserted islands, 
and on an uninhabited coast, by the officers and seamen of vessels sailing 
lUKhM- its flag. It may also punish derelictions of duty by its ministers, 
consuls, and other representatives abroad. But in all such cases it will be 
found that the law of Congress indicates clearly the ex-territorial character 
of the act at which punishment is aimed. Except in cases like these, the 
criminal jurisdiction of the United States is necessarily limited to their 
own t ('rritory, actual or constructive. Their actual territory is co-extensive 
with tiieir possessions, including a marine league from their shores into the 
sea. 

"This limitation of a marine blague was adopted becau.se it was for- 
merly supposed that a cannon-shot would only reach to that extent. It 
is essential that the absolute domain of a country should extend into the 
sea so far as necessary for the protection of its inhabitants against injury 
from combating belligerents while the country itself is neutral. Since 
the great improvement of modern times in ordnance, the distance of a 
marine league, which is a little short of three English miles, may, per- 
iiaps, have to be extended so as to eijual the reach of the projecting power 
of modern artillery. The constructive territory of the United States em- 
braces vessels sailing under their flag; wherever they go they carry the 
laws of their country, and for a violation of them their officers and men 
may be subjected to puni.shment. But when a vessel is destroyed and goes 
to the bottom, the jurisdiction of the country over it necessarily ends 
as much so as it would over an island which should sink into the sea. 

" In this case it appears that the 'Golden Gate' was broken up ; not a 
vestige of the vessel remained. Whatever was afterwards done with ref- 
erence to property once on board of her, which had disappeared under 
tile sea, was done out of the jurisdiction of the United States as com- 
]>lptely as though the steamer had never existed. 

" We are of opinion, therefore, that the Circuit Court has no jurisdic- 
tion to try the offence charged, even if, under the facts admitted by the 
parties, any offence was committed. According to the stipulation, judg- 
ment sustaining the demurrer will be, therefore, entered and the de- 
fendants discharged." 



814 

EX'PARTE CavANAUGH ON HaBEAS CoRPUS. 

In this case the petitioner^ James C. Cavanangh, was 
brought before the Circuit Court, in the summer of 1864, 
on a writ of habeas corpus^ alleging in his petition the un- 
lawful restraint of his lil^erty by an officer claiming to be 
a deputy marshal of the Consular Court at Nagasaki, in 
Japan, and pra^dng for his discharge. It appeared that 
the petitioner had been convicted in that Court, in Sep- 
tember of the previous year,— the consul sitting with four 
assessors,— of the crime of manslaughter in an aggravated 
degree, and sentenced to five years' imprisonment, at hard 
labor, in the jail at that port, and that the sentence had 
been approved by the resident minister in Japan. Upon 
the request of the petitioner, his sentence was changed to 
confinement in the State prison of California, there being 
no provision made by Congress for a jail at the port of 
N^agasaki. He was accordingly brought to San Francisco, 
and there he applied for his discharge. 

Two points were made before the Court: 1st. That the 
legislation of Congress carrying out the provisions of the 
treaty with Japan, by which the Consular Court was au- 
thorized to try citizens of the United States charged with 
the commission of crimes in that empire, was unconstitu- 
tional; and, 2d, if constitutional, that there was no pro- 
vision of law authorizing the confinement of prisoners, 
sentenced by that Court, in the penitentiary of California, 
or their detention by the marshal of the United States for 
that district. 

The Court held that the legislation of Congress was con- 
stitutional, but discharged the prisoner on the second ground. 
Its opinion has not been reported. It placed the validity 
of the legislation upon the treaty clause of the Constitu- 
tion, holding that that clause authorized treaties upon all 
subjects of foreign commerce and for the protection of 
persons engaged in it, and, if necessary, to prevent citizens 
of the United States, charged with offences, from being 



^15 

sulijcctcd to (he (MMK'I and l)arlt:inMis |>uiiisliineiit of Asiatic 
and otluTllian Christian conntrii'S, the treaties mi-;lit stip- 
nlate lor a special tribunal for their triah It lollowed 
suhstanlially the reasons contained in the letter to Mr. 
Calhoun, then Secretary of State, (»f Septend.cr, 1S44, by 
Mr. Caleh Cushini!,-, the minister who made our treaty 
with China, under wliieli C(»ni;-ress passed (he law author- 
izing;- similar Consular Courts in that empire. 

IIaudv vs. IIaubix. 

This case was before the Court in July, 18(1'). It was a 
suit in equity to charg-e the defendants- — as trustees of cer- 
tain real property, situated in Yolo County, C-alifornia — 
and to compel a transfer of the title to the complainaids, 
and arose out of facts of a very unusual character. They 
were brieily these: 

(Tne John Hardy was a native of Canada, and in 1824 
Avas married in that province. Three children wei'e the 
issue of this marriage, two of whom, Alexander and El- 
len, were living when the suit was l)rought. Alexander 
was born in Xew York, and during the civil war was a sol- 
dier in the United States Army. John Hardy's wife died 
in 183-, and soon afterwards he left Canada, and for one 
01' two years was employed at dillerent places on the Mis- 
sissip[)i River. He then proceeded to Texas and thence to 
Mexico. There he l)ecame a Mexican citizen l)y natural- 
ization, and for a while was engaged in the military ser- 
vice of the country. In 1843 he went to California and 
tjiere assumed the name of Thomas Hardy, by which name, 
or that of Thomas M. Hardy, he was always known in 
that country. In October of that year he obtained from 
the government of the Department of California, in his 
assumed name of Thomas Hardy, a grant of land to the 
extent of six square leagues, in the present county of Yolo, 
In Octol)er, 1848, he died at Benicia, intestate, possessed 
of the real property thus granted to him, and also personal 
property of the value of several thousand dollai's. lu 



316 

March, 1850, tlie Prefect of the District of Sonoma, wliicli 
embraces Benicia, appointed one Stephen Cooper, of that 
phace, administrator of the estate, and issued letters of 
administration to him, and he took possession of the prop- 
erty. In 1851 the Prefect — his office having been abol- 
ished, and Probate Courts having been established in the 
several counties of the State — transferred the papers to the 
Probate Court of Solano County. By order of that Coui-t 
the real property was sold and the sale confirmed. In 
1852 the claim of the purchasers of the land at that sale, 
and of parties deriving title from them, was presented for 
confirmation to the Board of Land Commissioners, created 
by act of Congress of March 3d, 1851, for the settlement 
of private land claims in California derived from Mexico. 
This claim was confirmed by the Board and afterwards by 
the United States District Court, and in July, 1858, a pat- 
ent of the United States was issued to the claimants. 

During all this time the two surviving cliildren of John 
Hardy liad lieard nothing of their father cxce}it l)y a letter 
iVom him dated at Monterey, in Caliiornia, in 1817 or 
1848. But sometime about 1860, rumors reached them — 
one, the daughter, being in Canada, and the other, the son, 
being in 'New York — that their father had resided in Cal- 
ifornia, acquired large property there, and had died intes- 
tate, and that others were claiming the property. Inquiries 
set on foot by them satisfied them of the truth of the ru- 
mors and this suit was finally In'ought bj^ them to recover 
the property. 

The facts here narrated were set forth in their bill of 
complaint, to which tlie defendants demurred on the al- 
leged ground of want of equity, and that the claim of the 
complainants was a stale one, and barred by the statute of 
limitations of the State. The Court overruled, the de- 
murrer and required the defendants to answer the bill. 

In deciding the case Judge Field said, as follows: 

" The ground upon which the bill proceeds is that the defendants have 
obtained the legal title to property, of which the father of the complain- 
ants died possessed, and which the complainants inherited ; that the de- 



317 

I'fiuiuiit.s look the li'gal title with uoticu of tlio iiivali(.lit.>- .oi' tlie means 
))y which it was obtaiued, and should, therefore, upon obvious principles 
of justice, be required to give it up to the true owners. The bill is filed 
for the purpose of having a trust declared and enforced, the complainants 
relying- upon the established doctrine that whenever proi>erty is acquired 
by fraud, or under such circumstances as to render it ineciuitable for the 
holder of the legal title to retain it, a Court of Equity will convert him 
into a trustee of the party actually entitled to its beneficial enjoyment. 
And the bill presents a clear case for the application of this doctrine. 
The Prefect of Sonoma had no jurisdiction over the estate of the de- 
ceased, nor any authority to appoint an administrator. Prefects were 
executive officers of the government. It was their duty to maintain pub- 
lic order and tranquillity, to publish and enforce the laws, and to exer- 
cise a general supervision over the subordinate officers and the public in- 
terests of their districts. They were empowered to impose small tines in 
the enforcement of their authority, and to hear complaints against inferior 
otiicers of the district, but bcyoud this extent they were not clothed Avith 
any judicial functions. 

"Nor did the Probate Court of Solano County acquire any jurisdiction 
over the estate of the deceased after the transfer of the papers from the 
I'refect. The statute of California for the settlement of the estates of 
deceased persons has no application to the estates of parties who died 
previous to the organization of the State government. This was ex- 
pressly held by the Supreme Court of California in Grimes' Estate vs. 
Norris, with reference to the probate of a will executed in 1848 (6 Cal., 
621) ; and the ruling in this respect was affirmed by the same Court in 
the subsequent case of Tevis vs. Pitcher. — (10 Cal., 465.) The act which 
provides for the probate of wills also regulates the manner in which the 
estates of parties dying intestate shall be closed, and is equally limited 
in its application to cases arising subsequent to the adoption of the con- 
stitution. It was obviously the intention of the Legislature to leave all 
estates of decedents who died previously to be settled under the law as 
it then existed ; and such is the ruling in a recent case of the Supreme 
Court of the State. — (Downer vs. Smith, 24 Cal., 114.) 

" It was, therefore, under color of legal proceedings, every step of which 
Avas a nullity, that the conveyance of the alleged administrator was exe- 
cuted. That conveyance enabled the purchasers, and parties holding un- 
der them, to present the grant made to Hardy by the Mexican govern- 
ment to the Board of Land Commissioners, and to obtain a confirmation 
of the claim asserted by them to the land it embraces, and ultimately the 
patent of the United States. Thus, by means of an instrument purport- 
ing to transfer the interest of which Hardy died i>ossessed, but in fact 
transferring nothing, they obtained a standing before the federal- tribu- 
nals, and have secured to themselves the legal title from the government 
of the United States. It is the possession of this legal title, as shown 
by the confirmation and patent, which precludes the complainants, who 



•318 

are the sole surviving heirs of the deceased, iVom instituting or maintain- 
iug ejectment for the premises, and forces them to seek relief from a 
Court of Equity. And it is upon the confirmation and patent that the 
defendants rely to resist the claim of the complainants. Their position 
is that the confirmation enured to the benefit of the confirmees, and that 
the patent is conclusive evidence of the validity of their title ; that it is 
the record of the government upon it, which cannot be questioned ex- 
cept in direct proceedings instituted in the name of the government or 
by its authority. 

" It is undoubtedly true that the confirmation enured to the benefit of 
the confirmees, so far as the legal title to the premises was concerned. It 
established the legal title in them, but it determined nothing as to the 
equitable relations between them and third parties. The object of the 
government in the passage of the act of March 3d, 1851, was to separate 
the public lands from those which were private property, and to discharge 
its treaty obligations by protecting private claims. The only question 
in which the government was concerned, and which demanded its con- 
sideration, was what interests in land had the former sovereignty parted 
with, not what had transpired between private parties subsequent to the 
action of that sovereignty. And in conformity with this view is the lan- 
guage of the Supreme Court of the United States in Castro vs. Hendricks. 
— (23 How., 412.) After stating that to accomplish the purposes of the 
act of March 3, 1851, every person claiming lands in California by virtue 
of any title or right derived from the Spanish or Mexican governments, 
was required to present the same to a Board of Commissioners, the Court 
said : ' The mesne conveyances were also required, but not for any aim of 
submitting their operation and validity to the Board, but simply to enable 
the Board to determine if there was a bona fide clahnaut before it under a 
Mexican grant; and so this Court have repeatedlj' determined that the 
government had no interest in the contests between persons claiming ex 
post facto the grant.' And the Supreme Court of California, whilst de- 
claring that the confirmation enured to the benefit of the confirmee, has 
in frequent instances qualified the declaration by stating that equities 
between the confirmees and third parties remained unaffected. Thus, in 
Estrada vs. Murphy (19 Cal., 272), the Court said : ' If the confirmee, 
in presenting his claim, acted as agent, or trustee, or guardian, or in any 
other fiduciary capacity, a Court of Equity, ujion a proi^er proceeding, 
will compel a transfer of the legal title to the principal, cestui que trust, 
ward, or other party equitably entitled to the same, or subject it to the 
proper trusts in the confirmee's hands. It matters not whether the pre- 
sentation was made by the confirmee in his own name in good faith, or 
with intent to defraud the actual owner of the claim, a Court of Equity 
will control the legal title in his hands so as to protect the just rights of 
others.' 

" The patent is undoubtedly a record of the government upon the title 
of the claimant. Before it is issued numerous proceedings are required 



810 

to be tiikcii hcfoiv tlic trihiuials and olliccrs of the United Stales, liaving 
tor tlieir object the ascertainment of the validity of tlie <i;raiil. i)rcferred 
under Mexican hiw and authorities, and the identification of liic land to 
which it is or should be restricted. As the last act in the series of i)ro- 
ceedings, and as a result of those previously taken, it is issued. It is, 
therefore, record evidence on the part of the government that the pre- 
vious grant was genuine, and entitled to recognition and contirmation by 
the law of nations, or the stipulations of the treaty between Mexico and 
the United States, and is correctly located so as to embrace the premises 
described. Until vacated and set aside by proceedings instituted in the 
name, or by the authority of the government, it is evidence that the title 
had passed by the grant from the former government, or that such equi- 
ties had existed under that government in favor of the alleged grantee, 
as to require or justify the cession of the title, and also that by convey- 
ances, regular on their face, the legal title had apparently passed from 
the grantee to the claimant; but it is not evidence of any equitable rela- 
tions of the holders of subsequent conveyances from the grantees to 
each other or to third parties, for such relations were not submitted to 
the tribunals of the United States for adjudication in the settlement of 
private land claims under Spanish and Mexican grants. 

" There is nothing in the numerous decisions of the Supreme Court of 
the State upon patents of the United States which militates against this 
view. Those decisions, with one or two exceptions, were rendered in ac- 
tions of ejectment, and only affirmed the conclusiveness of the patents in 
determining the title of the patentees in such actions, as against attempts 
to resist their operation by parties holding either under uncontirmed 
grants, or by alleged pre-emption and settlement under the laws of the 
United States. It is true, it is said in Stark vs. Barret (15 Cal., 316), that 
the patent, in recognizing the validity of the grant, upon the contirmation 
of which it is issued, necessarily establishes the validity of all properly ex- 
ecuted intermediate transfers of the grantee's interest, but this is no 
more than saying that if the grant was valid, a valid title was transferred 
by properly execnted conveyances of the grantee — a proposition which 
requires no explanation. And the decision in Clark vs. I^ockwood (20 
Cal., 220), to which counsel refer, only goes to the extent of declaring 
that in an action of ejectment by the vendee of the confirmee, it is un- 
necessary to introduce the intermediate conveyances from the Mexican 
grantee to the confirmee, the confirmation being an adjudication that the 
legal title was in him at the date of the presentation of his petition to 
the Land Commissioners. The opinion of the Court expressly limits the 
conclusiveness of the adjudication to the legal title in that action, and 
cites from the case of Estrada vs. Murphy to show that equities against 
sucli titles may be enforced by proper proceedings in a Court of Equity. 

"The action of ejectment deals with legal titles; the patent determines 
the position of such title, and when the patentee is other than the Mexi- 
can grantee, it is evidence that he had made such a prima facie showing 



320 

before the proper antliorities of liavinjia Ininsl'cr oCtho grantee's interest, 
as to justify its having been issued to him. In the opinions filed on ren- 
dering the decisions in the State Courts cited by counsel, though relating 
to the legal title, reference is made in several instances to possible equi- 
ties of third parties, for the purpose of qualifying the general language 
used as to the conclusive effect of the patents, and to direct parties assert- 
ing such equities to the proper tribunal for relief." 

Tlie Judge then referred to the cases of Brnsli vs. Ware 
(15 Peters,^ 93), Reeder vs. Barr (4 Oliio, 458), and pro- 
ceeded as follows : 

" The princii)le upon which these decisions proceed is the fanailiar one, 
that where a purchaser cannot make out his title except through an in- 
strument which leads to a jiarticular fact, he is chargeable with notice of 
such fact. 

" In the case at bar the principle applies and is a full answer to those 
of the defendants who took their title from the patentees. The patent, 
we must presume, was issued in the ordinary form of such instruments 
upon the confirmation of a Mexican grant, with a recital of the existence 
of the grant, the conveyance of the grantee's interest by the admiiiistrator, 
the confirmation of the claim under the grant, its survey upon the con- 
firmation, and the approval of the survey by the proper officers of the 
government. Such are the usual recitals, and, of course, in the present 
case they directed the attention of all subsequent purchasers to the ex- 
amination of the conveyance of the administrator, and the proceedings 
upon which it was made. 

"The position that the complainants are not entitled to relief because 
by the act of March 3, 1851, all lands, the claim to which was not present- 
ed within two years thereafter, were to be deemed part of the public do- 
main, hardly merits serious consideration. It cannot be affirmed that if 
the sale by the administrator had not taken place, friends of the deceased 
would not have made efforts to ascertain whether there were any heirs to 
the estate, and have not succeeded in finding them ; nor that the property 
would not have V)een taken in charge by officers of the State as a vacant 
inheritance, and the grant presented for adjudication to the proper tri- 
bunals of the United States ; nor that relief might not have been afforded 
the heirs when the property was discovered by appropriate legislation. 
The finder of personal property might with equal propriety justify its 
retention on the ground that the true owner would never have found it. 

" The claim presented by the claimants, resting upon solid principles 
of justice and right, must be sustained, upon the showing of the bill, un- 
less barred by the statute of limitations. 

" The statute of limitations of this State is peculiar. It differs essen- 
tially from the English statute, and from the statute of limitations in 
force in most of the other States of the Union. Those statutes, in 
terms, ai^ply only to particular legal remedies, and Courts of Equity 



321 

are said to l)c bound )iy tliriii only in cases of coiKnirrculJiiiisdicdoii, 
and in other oases to act only by analojiy to the statntcs, and not in 
obedience to them. But in this State the statute applies iHitii ti> c(iuitM- 
ble and to legal remedies. It is directed to the subject-matter, and not 
to the form of the action or the tribunal before which it is jirosecuted. 
Such is the language of the Supreme Court, the only authoritative inter- 
preter of the laws of the State. — (Lord vs. Morris, 18 Cal., 486.) 

" The question then is, whether the statute barred the relief jiraycd, 
and not whether, as insisted by counsel, the claim on general principles 
adopted in the administration of equity is a stale claim, although we 
may add on this latter head that the claim has upon such principles no 
feature that should bar its enforcement on that ground. The statute 
provides that certain actions shall be brought within three years after 
the cause of action shall have accrued, but declares that in action for re- 
lief on the ground of fraud, the cause of action 'shall not be deemed to 
have accrued until tlie di.scovery by the aggrieved party of the facts con- 
stituting the fraud.' This exception covers the case at bar. The pat- 
entees secured to themselves the legal title by the presentation to the 
Board of Land Commissioners of a worthless document as a transfer of 
the grantee's interest, and they prosecuted a claim under this document 
for years. By these proceedings a fraud was committed upon the heirs of 
Hardy, and not until its discovery did the statute commence running 
against their rights. The bill avers such discovery within the years pre- 
scribed. And the defendants who took title under the patentees are charge- 
able with notice of the character of the claim under which the patentees 
secured the title, and, consequently, are precluded from protection as in- 
nocent purchasers. They are, therefore, chargeable with constructive 
fraud in taking title from the patentees, however ignorant in fact of the 
rights of the heirs, and however honest in their intentions they may have 
been. 'Another class of constructive frauds,' says Mr. Justice Story, after 
enumerating several clas.ses, ' consists of those where a person jjurchases 
with full notice of the legal or equitable title of other persons to the 
same property. In such cases he will not be permitted to protect him- 
.self against such claims; but his own title will be postponed and made 
subservient to theirs.' " 

This case is reported in 4th Sawyer, .53(J. Its doctrine 
was afhrnted in Norton vs. Meader, Fhid., 604. 

Hall vs. LTnger. 

California passed under tlie jurisdiction of the United 
States on the 7th of July, 184G; at least at that date the 
forces of the United States took possession of Monterey^ 
tlie Capital of the Department, and from it the authority 



of MoxiciUi oiiicials over the conntiy is rcicardod l\y the 
[>olitical (iepartment of the o-overninent, as liaviiig ceased. 
In that respect the judiciary follows the action of the politi- 
cal department. — (United States vs. Yorba, 1 Wall., 423.) 
At that time there was a Mexican pueblo at the site of 
the present city of San Francisco. This term, " pueblo," 
has all the vagueness of signification of the English word 
'' town," and is applied indiscriminately to a mere collec- 
tion of individuals residing at a particular place, a settle- 
ment, a village, and also to a regularly organized munici- 
pality. The pueblo at San Francisco, was a small settle- 
ment, though it was of sufficient importance, as early as 
1835, to have a Council [Ayuntamiento] , composed of 
alcaldes and other officers, for its government. When 
our forces took possession of the town, citizens of the 
United States were appointed, by the military and naval 
commanders, to act as alcaldes in place of the Mexican of- 
ficers. 

Under the laws of Mexico, a pueblo — or town — when 
once recognized as such by public authority, became en- 
titled to the use of four square leagues of land, end)racing 
its site and adjoining country. San Francisco, as a pueblo, 
asserted a claim to such lands. The Mexican alcaldes were 
authorized to distribute these lands in small tracts to the 
inliabitants of the town for building, cultivation, or other 
uses, the remainder being reserved for commons or other 
public purposes. Tlie American alcaldes, appointed by 
our military or naval commanders, at once asserted a right 
■ to exercise this power of distribution, and as a consequence 
they had numerous applications for grants, some of which 
were from officers of the army and navy. 

In December, 1848, John Hail, a lieutenant in the navy, 
received from Alcalde Leavenworth a grant of a hundred- 
vara lot, that is, a lot two hundred and seventy-five feet 
square. Whatever title the city, or the State, or the United 
States may have possessed to the land, was aiterwards re- 
linquished by city, state, and congressional legislation. 



ITis title, tluM'cforo, if not so :it the tiiiio. sn1)s(Miii('iitly l>c'- 
caiiK' porfoct. 

In 1849 Hall became nn\v(;ll, and his health was so much 
affected that he was sent from California, to the Eastern 
States in the charge of a physician. He arrived in New 
York and Joined his family in dune, 1849, and remained 
with them until June, 1851. Durinii- this period tliere 
were such indications of insanity that, f>y the advice 
of his |»liysieian and consent of his family, he was sent to 
the asylum at Frankford. There ho. remained under treat- 
ment f )r insanity until January, 1854, when he was re- 
moved to the State insane asylum, where he died in Sep- 
tember, 1860. 

On the 27th of December, 1852, whilst he was in the 
asylum at Frardxford, he signed a power of attorney to one 
James W. Harris, empowering him to sell and convey the 
lot in San Francisco, and also to appoint a substitute to 
act for him. This power bore a certificate of due acknowl- 
edgment before a commissioner of California, resident in 
Pennsylvania. The attorney mentioned a})pointed one 
Havid B. Rising as his substitute, and he, as such sub- 
stituted attorney, executed a conveyance to parties who 
entered into possession of the premises. Against them the 
widow and heirs of the deceased Hall brought ejectment 
for the property, contending that, at the time the power of 
attorney purported to have been executed, Hall was in- 
sane, and incapable, by reason of liis insanity, of attend- 
ing to any business. 

The case was tried at the (^ctol)er term of ]8<)7, with a 
jury, whom Judge Field charged, as follows: 

" Gentlemen, I do not propose to attempt any nice or pliilosophical 
exposition of the subject of insanity. I sliould certainly fail if I made 
the attempt; and if I could succeed, the result wouhl not he of any ser- 
vice to you in determining this case. Any elaborate and extended dis- 
sertation, if it were possible for me to present such a one, would only 
tend to perplex and confuse your minds. I shall make a few plain ob- 
servations on this subject, and refer to the rules laid down by the au- 
thorities to guide you in- considering it, and then call your attention 
briefly to the evidence jn the ease. 



324 

"The physiciuns who have been examined, and the text-writers, 
declare that it is impossible to give any consistent detinition of insanity ; 
that no words can comprise the different forms and characters which this 
malady may assume. The most common forms, in which it presents 
itself, are those of mania, monomania, and dementia. All these imply 
a derangement of the faculties of the mind from their normal or natu- 
ral condition. Idiocy, which is usually classed under the general des- 
ignation of insanit}^ is more properly the absence of mind than the 
derangement of its faculties ; it is congenital, that is, existing at birth, 
and consists not in the loss or derangement of the mental powers, but in 
the destitution of powers never possessed. 

" Mania is that form of ii*sanity where the mental derangement is 
accompanied with more or less of excitement. Sometimes the excite- 
ment amounts to a fury. The individual in such cases is subject to hal- 
lucinations and illusions. He is impressed with the reality of events 
which have never occurred, and of things which do not exist, and acts 
more or less in conformity with his belief in these particulars. The 
mania may be general and affect all or most of the operations of the 
mind; or it may be partial, and be confined to particular subjects. In 
the latter case it is generally termed monomania. 

" Dementia is that form of insanity where the mental derangement is 
accompanied with a general enfeeblement of the faculties. It is charac- 
terized by forgetfulness, inability to follow any train of thought, and 
indifference to passing events. ' In dementia,' says Ray, a celebrated 
writer on medical jurisprudence, 'the mind is susceptible of only feeble 
and transitory impressions, and manifests but little reflection even upon 
these. They come and go without leaving any trace of their presence 
behind them. The attention is incapable of more than a momentary 
effort, one idea succeeding another with but little connection or cohe- 
rence. The mind has lost the power of comparison, and abstract ideas 
are utterly beyond its grasp. The memory is peculiarly weak ; events 
the most recent and most nearly connected with the individual being 
rapidly forgotten. The language of the demented is not only incohe- 
rent, but they are much inclined to repeat isolated words and phrases 
without the slightest meaning.' 

" These common forms of insanity — mania, monomania, and dementia — 
present themselves in an infinite variety of ways, seldom exhibiting 
themselves in any two cases exactly in the same manner. Mania some- 
times affects, as already observed, all the operations of the mind ; and 
sometimes the mental derangement appears to be limited to particular 
subjects. An absence of reason on one matter, indeed on many matters, 
may exist, and at the same time the patient may exhibit a high degree 
of intelligence and wisdom on other matters. The books are full of such 
cases. Many of them have been cited to you by counsel on the argu- 
ment. They show, indeed, a want of entire soundness of mind ; they 
show partial insanity, but this does not necessarily unfit the individuals 



afrcctcd I'or tlic trans ictiou ol' Imsincss on all snlijccts. in a case which 
arose in tlic PriTo.iiativc Conrt ol" laitiland (Dew vs. Clark, :> Aiklams 
Va-v\. K., 7!)i. it was Slid hy connsfl that iiaitial insanity was soniothinf? 
unknown to tin- Liw of En,ij,laiul. To this suirucstion tlie Conrt r(>j)lied: 
' If he mraut, by this tliat the law of iaiiiland never deems a jjorson both 
sane and insane at the same time upon one and the sanu'^ snbjeet, the 
assertion is a mere truism. But if by tluit position lie meant and in- 
tended that the law of England never deems a party both sane and 
in-iane at dififereiit times on the same subject, and both sane and insane 
at the same time on diiYerent subj-.-ets, tliere can seareely be a i)osition 
nujre destitute of legal foundation, or ratlier tiiere can seareely be one 
more adverse to the current of legal autliority.' In that case the Conrt 
cited the language of Locke, that 'anian who is very sober and of a 
right understanding in all other things, may, in one particulai', be as 
frantic as any man in Bedlam ;' and of Lord Hale, who says, ' There is a 
partial in.sanity of mind and a total insanity ; iu the first, as it respects 
particular things or persons, or in respect of degrees, which is the condi- 
tion with very many, especially melancholy persons, who for the most 
part discover their defect in excessive fears and grief, and yet are not 
wholly destitute of the use of reason.' 

"So. too. in dementia, where there is a general enfei'blement of the 
mental powers, there is not usually equal weakness exhibited on all .sub- 
jects, nor in all the faculties. Those matters which, previous to the exist- 
ence of the malady, the patient frequently thought of and turned over 
in his mind, are generally retained with greater clearness than less fam- 
iliar objects. One faculty may be greatly impaired — the memory, for ex- 
ample — while other faculties retain some portion of their original vigor. 
The disea-se is of all degrees from .slight weakness to absolute lo.ss of rea- 
son. The enfeeblement usually progresses gradually — through a twilight, 
as it were, of reason, before the darkness of night settles upon the mind. 

•■ It is important to bear these observations in mind, for it does not fol- 
low from the fact that mania or dementia be shown, that there may not 
be reason or capacity for business on some subjects. In determining the 
ability of the alleged insane person to execute any particular act, the in- 
(|uiry should first be, what "degree of mental capacity is essential to the 
])roper execution of the act in question ; and then whether such capacity 
was possessed at the time by the party. It is e\ident that a very differ- 
ent degree of capacity is required for the execution of a complicated con- 
tract, and a single transaction of a simple character, like the purchase or 
sale of a lot. 

'■ The act done in the case at bar was the execution of a power of attor- 
ney to sell three lots in San Francisco. The act required no greater 
exerci.se of reason than is essential to the valid execution of a will 
of real property ; and the authorities which determine the degree 
<»f capacity essential in such cases may properly be relied upon as 
furnishing the proper rule in this ca.se. And those authorities con- 



32G 

cur, especially the later authorities, substantially in this: that it is 
only necessary to the validity of the will that the testator had sufiii- 
cient mind and memory to understand the business upon which he was 
engaged, and the eifeef of the act he was doing. ' He must,' in the lan- 
guage of Judge Washington, in Harrison vs. Kowau (3 Wash. Cir. Ct., 
585), ' have a sound and disposing mind and memory. In other words, 
he ought to be capable of making his will, with an understanding of the 
nature of the business in which he is engaged — a recollection of the prop- 
erty he means to dispose of— of the persons who are the objects of his 
bounty, and the manner in which it is to be distributed between them. 
It is not necessary that he should view his will with the eye of a lawyer, 
and comprehend its provisions in their legal form. It is sufficient if he 
has such a mind and memory as will enable him to understand the ele- 
ments of which it is composed — th'e distribution of his property in its 
simple forms. It is the business of the testator to dictate the purposes 
of his mind, and of the scrivener to express them in legal form.' 

" It is true, as stated by counsel, that the authorities generally go to 
the extent that it requires less intelligence and reason to make a will 
than to execute a contract ; but for the execution of an act of a simple 
character, not involving complicated details, and provisions, the rule laid 
down by Judge Washington is sutficiently stringent. 

"According to that rule, it was material to the valid execution of the 
power in this case, that Hall should at the time have possessed sufficient 
mind and memory to understand the nature of the business he was en- 
gaged in, to know the character and location of the property, and the ob- 
ject and effect of the act he was doing ; in other words, it was essential 
that he should recollect that he was the owner of the property mentioned ; 
that such ijroperty was situated in the city of San Francisco, and that the 
instrument conferred authority for the sale of the same. 

" In considering this case, it is to be remembered that the law presumes 
that every adult man is sane, and possessed of the absolute right to sell 
and dispose of his property in whatever way he may choose — his will in 
every case standing as the reason of his conduct. Whoever denies his 
sanity must establish the position ; the burden of proof rests upon the 
party who alleges the mental derangement. And if, as in the present 
case, the validity of a particular act is assailed, the assailant must estab- 
lish that at the time the act was done the insanity existed. Testimony 
as to previous or subsequent insanity will not answer, unless the insanity 
be shown to be habitual — that is, such as is in its nature continuous and 
chronic. The fact of the existence of a prior or subsequent lunacy, ex- 
cept where it is habitual, does not suffice to change the burden of proof. 
The case is, however, otherwise when such habitual insanity is shown to 
have existed — then the presumption is that the party was insane at the 
time and the burden of proof rests with those who allege the party's 
competency. 

" Again, in considering whether a particular act assailed for the alleged 
insanity of th<? party was valid or not, regard must be had, in the absence 



8-27 

of (lirt'Ct testimony <>n tho point, to all tlic atlonding circunistancos— tin; 
roasouablent'ss of the act in itselt", and its approval li.v the linuil.v and 
relatives of the party. The reasonableness of the aet, and tlie ajipiova! 
of the family and relatives will not render the act valid, if the party 
were at the time insane, but they are circumstances tendin<r to show that 
the party was not at the time incompetent, and that his family and rela- 
tives did not so regard and treat him. 

''In this c<xse it appears that the lot in controversy was at the time in 
the adverse possession of others, and that the Supreme Court of the State 
had decided that Alcalde grants conferred no title. A sale of his interest, 
if anything could be obtained for it, under the circumstances, would .seem 
to have been a judicious and a wise stej). 

" The only testimony which relates directly to the time of the execu- 
tion of the power is that of Broadhead, the witness to the instrument, 
and the officer before whom it was acknowledged. It was the dutj^ of 
this officer to satisty himself of the competency of Hall betbre attesting 
the instrument. As said by the Supreme Court of Pennsylvania in 
AVerstlee vs. Custer (10 Penn., 503), ' No honest mau will subscribe as 
a witness to a will, or any other instrument executed by an insane man, 
an imbecile, an idiot, or a person manifestly incompetent for any reason 
to perform, with legal elTect, the act iu question. A duty attaches to the 
witness to satisfy himself of the competency of the party before he lends 
his name to attest the act. Like the magistrate who takes the acknowl- 
edgment of a deed, he is to be reasonably assured of the facts he under- 
takes to verify, else he makes himself instrumental in a fraud upon the 
public. And, therefore, the legal presumption, always favorable to com- 
petency, is greatly strengthened by the fact of attestation by witnesses.' 

" Such is the general effect of the attestation of a witness and officer, 
but whether the attestation in the present case, under the peculiar cir- 
cumstances in which it was made, can add anything to the legal pre- 
sumption of competency may well be doubted. It is a circumstanoo 
worthy of consideration, whether the Commissioner should have gone to 
the asylum to take the acknowledgment of an inmate of the institution, 
with whom he had no previous acquaintance, without information from 
the officers of the institution, that the patient at the time was in posses- 
sion of sufficient reason to understand the business, which it was pro- 
posed he should execute. 

" Broadhead testifies that he went to the Frank ford Asylum to take the 
acknowledgment of Hall, with whom he was not pi'eviously acquainted ; 
that he read the power to Hall, and handed it to him to read, and asked 
him if he understood it; that Hall replied ' perfectly,' or Avords to that 
effect, and that the property was valuable, and that lie wanted it sold for 
the benefit of his wife and children. The Commissioner also testifies that 
he could not have believed Hall was on all subjects of sound mind from 
the simple fact that he was an inmate of the asylum, but that as to the 
power of attornej^ Hall was clear as to what he was giving ; that there 



328 

was nothing in his appearance which led the Connnissioner to suppose lie 
was insane, and from the fact that he stated that he wanted the property 
to be sold, the Commissioner was led to believe he had a lucid interval. 
The witness adds that he would not have permitted Hall to execute the 
instrument, and he would not himself have taken the acknowledgment, 
unless Hall had been of suflficieut mind, memory, judgment, and under- 
standing to execute such a paper. 

"Aside from the peculiar circumstances under which the Commissioner 
acted, there is one fact in his testimony, which should be considered by 
you as throwing possibly some liglit on the condition of Hall's mind at 
the time, somewhat in conflict with the Commissioner's own opinion. Pf e 
states that Hall at first wrote something besides his signature to the in- 
strument. Tiie instrument itself shows that there has been an erasure 
of soimthing near the signature. The Commissioner states, as his ini- 
l)ression, that Hall wrote some other name than his own. This is at least 
a singular circumstance, if, as stated by the Ctmimissioner, he had heard 
the instrument read and perfectly understood its purport. 

■' We will now briefly refer to the testimony produced by the plaintiffs 
to show the general insanity of Hall at the time he executed the jtovver 
in question. If he was then insane, and his insanity was general, the in- 
strument was a nullity, and no title could be transferred under it. In 
that case the plaintiffs are entitled to a verdict. It matters not, if such 
were the case, what consideration may have been paid to the attorney, or 
Avith what good faith the parties nuiy have purchased. The instrument 
in such case is no more to be regarded as the act of John Hall than if he 
was dead at the time of its execution." 

The Judi^-c then comuieiited at leni(th upon the testi- 
mony and submitted the case. Tlie jury found a verdict 
for the plaintiffs and judgment was entered in tlieir favor, 
Aftervvanlsthe. case was taken to the Supreme Coiu-t ol' the 
United States, where the judgment was alfirmeiL It is re- 
ported under the title of Dexter vs. Hall (15 Wall., 9). 

MONT(iOMERY VS. BeVANS. 

In the preceding case an account is given of the pueblo 
of San Francisco, existing on the ac(|uisition of California, 
its claim to the use of four square leagues of land, and the 
power exercised by its Alcaldes to make grants of portions 
of such lands to individuals for building, cultivation, and 
other purposes. 

On the 1st of December, 1846, a grant was nuide ol' a 
fiftv-varn lot, that is. a lot ol' one hundred and thirt\-seven 



320 

and a liall' foi't stiuarc, williin the limits of San Francisco, 
to John E. Montgomery, 1)V Alcalde IJartU'tt, of that ]ila«'c. 
Subsequently — in Fel)i'uaiy. 1N47 -a grant for the same 
jiremises was made to Andrew .1. (Jrayson l)y iMcalde 
iii'yant, of the town. 

The (jucstion presented to the Court foi' decision was, 
whether the tirst grant evei' took etrect, and tiiat depends 
upon the further question whether, at the time that it was 
made, the grantee was living. On the 15th of November 
preceding he left the Tnited States vessel-of-war, the 
Portsmouth, then lying in the harbor of San Francisco, in 
a launch, witli others, and was never afterwards heai'd 
from. He was nevei' married and left no \\ill, and l)v the 
law of California the father talces the estate of a- child 
dying intestate. 

This suit way brought by the father to recover the prem- 
ises, and w-as tried by the Court without the intervention 
of a jury, by stipuhition of the parties, in August, 1871. 
In liis opinion deciding the case, Judge Field said as fol- 
lows: 

"The testimony of the plaiutili" which proves the deliveiy of the grant, 
also proves the death of the grantee, or rather proves that he has not been 
lieard from since the fifteenth of November, 1846, and the laAv presumes 
the death of a person who has not been heard from for the period of 
seven years. The plaintiff claims the premises as the heir of the grantee, 
and relies upon the presumption of law as to the grantee's death to estab- 
lish his case. And at the same time he relies upon what he insists is a 
presumption of law of equal force, that the grantee having been shown 
to be alive on the 15th of November, 1846, continued alive until the lapse 
of seven years, when the presumption of death arose. The counsel for 
the defendants, on the other hand, contend that there is no presumjUiou 
of the continuance of life during this period of seven years, and that the 
plaintiff asserting that the grantee was alive on the 1st day of December, 
1846, as he must do to give efficacy to the grant of the Alcalde, is bound 
to prove the tact, and failing to do so his chiim of title falls to the ground. 
The argument upon which this position is based is substantially this: 
The presumption of death arises from the lapse of time since the party 
has been heard from; for it is considered extraordinary if he was alive 
that he should not be heard of during this period. Now, if he is to be 
presumed to be alive up to the last day but one of the seven years, there 
is nothing extraordinary in his not having been heard of on the last day, 



830 

and the previous hipse of time during which he was not heard of heconies 
immaterial hy reason of the assumption that he was living so lately. 
Language similar to this is found in the opinion of the Exchequer Cham- 
ber in the case of Knight vs. Nepean (2 IMees. and Wels., 895), and hence 
counsel argue that there is nopresumjition in favor of the continuance of 
life during the penumbra, or death period, of seven years, for if such pre- 
sumption prevailed for one day after disappearance proved, it would nec- 
essarily prevail for six years and 364 days, and the whole basis upon 
which the presumption of death rests would become absurd. The cases 
of Doe vs. Nepean, decided by the Court. of King's Bench, of Knight vs. 
Nepean, mentioned above, decided by the Exchequer Chamber, and the 
case of In re Phene Trusts, recently decided by the Court of Appeal in 
Chancery in England, are cited in support of this position. 

" In Doe vs. Nepean (5 Barn, and Adolph, 86) the lessor of the plaintilf 
claimed the premises in controversy by title accruing on the death of one 
Matthew Knight, who left England for America in 1806 and was not 
heard of after 1807. The action was brought in 1882, and the question 
at the trial was whether the action was barred by the statute, which lim- 
ited the entry of a person into lands to twenty years after title accrued. 
It was admitted that Knight must be presumed to have died, more tlian 
seven years having elapsed since he was heard of, and if that presumption 
were referable to the time when the last intelligence was received of him, 
1807, the action was brought too late ; but if it arose only when seven 
years had elapsed from the receipt of such intelligence the action was in 
time. The judge before whom the case w^as tried was of opinion that 
the presumption of death only arose at the expiration of the period of 
seven years, or in other words, that the presumption of life continued un- 
til that time, and directed a verdict for the plaintiff, with leave to the 
defendant to move for a non-suit. After argument upon the motion the 
Court of the King's Bench held that the lessor of the plaintiff who gave 
no otlier evidence of Knight's death than his absence, tailed to establisii 
that his death took place within twenty years before the action was 
brought. Mr. Chief Justice Denman, in giving the opinion of the Court, 
observed that though absence of a person tor seven years without being 
heard of naturally led the mind to believe he was dead, and therefore 
was sufficient to warrant a presumption of fact that he was dead at the 
end of tliat period, it raised no inference as to the exact time of his death, 
and still less tliat death took place at the end of seven years. 

" In the case of Knight vs. Nepean, which was another action of eject- 
ment for the same premises, the same question was considered by tlie Ex- 
chequer Chamber (2 Mees. & Wells., 805), and after elaborate argument, 
the doctrine laid down in Doe vs. Nepean was approved, the Court ob- 
serving in its opinion that when nothing is heard of a person for seven 
years, it is matter of complete uncertainty at what point of time in those 
seven years he died, and that of all the points of time, the last day is the 
most improbable and incon.sistent with the ground of presuming tiie fact 



:5;n 

of (Icatli. Ami yi't, in the opinion liolh of tlir Kin-:'.s Ilcncli, in Doc vs. 
Xipciin, and of the Exdu-quor Chanilicr, in this oaso, it is stated thai tin- 
hiw iirtsumes that a person once shown to t)e alive continvies so until tlie 
contrary be shown, and that for this reason the onus of estal)lisliin<; the 
death of Knight rested upon the lessor of the plaintiff. The presuniii- 
tion of the continuance of life, thus stated, is inconsistent with the <-on- 
clusions reached in both cases. If the presumption of lif<> exists until 
death is shown, it is diflicuK to perceive why it should not continue, 
when death is not shown, until the i.criod is reached at which the law 
lias tixcd as the eonunencenient of a dillerent presumption. Clearly 
there is no rule or principle which can limit its continuance at any luriod 
within the seven years, if it be admitted to exi.st at all. 

•■In the ease of Phene Trusts (Law Kep., 5, Chan. Appeals, 4:;<ti Ihe 
Court of Appeal in Chancery held, alter elaborate consideration, that the 
time at which a person died ■within the seven years was not a nuitter of 
presumption, but of proof; also, that there was no presumption in favm- 
of the continuance of life after the disappearance of the party, and that 
the onus of proving the death of the party at any particular tiuu' within 
the seven year.s, or that he survived any particular time within that jie- 
riod, lay ui)on the person who claimed a right resting upon the establish- 
ment of either of these facts. 

" In that ease it appeared that one Francis Phene liad died in January, 
1861, having by his Avill bequeathed the residue of his estate to his 
nephews and nieces in equal shares. Nicholas Phen<). Mill was one of his 
nephews, and the share to which he would have been entitled, if living, 
was paid into Court, because it was uncertain whether he survived the 
testator. In 1S69 letters of administration were granted to his brother, 
who presented a petition for the payment of the fund to him. It ap- 
peared in evidence that he left his parents' home in England and went to 
America in August, 1853, and was last heard of in June, 1860. Yice- 
Chancellor James, to whom the petition was presented, granted its prayer, 
holding in deference to three previous decisions of Vice-Chancellor Kin- 
dersly and one of Vice-Chancellor Malins, that the deceased must be pre- 
sumed to have survived the testator, upon the general doctrine that con- 
tinuance of life once shown to exist is presumed until death is proved, or 
at least for a reasonable period after disappearance ; but as he dissented 
from the decisions, he directed the fund to be retained in Court until the 
lespondents had an opportunity to bring the matter before the Court of 
Appeal. 

" The decision of Vice-Chancellor Kinder.sly proceeded uptm the pre- 
sumption of the continuance of life for a reasonable period alter the 
party is shown to have been in existence ; but Vice-Chancellor Malins 
extended the presumption of the continuance of life to the expiration of 
the seven years. In re Phene Trusts (Law Rep., 4, Eq. Cases, 416) the 
doctrine held by the.se judges was overruled, and if the opinion of the 
Court of Appeal contains a correct exposition of the law of England, and 



we are V)ound to presume that it does in the absence of any decision of 
the House of Lords on the subject, that law supports the position of the 
counsel of the defendants in this case, that the onus rests on the plaintiff 
of showing that John E. Montgomery, who disappeared on the 15th of 
November, 1846, and of whom no intelligence has since been received, 
was alive on the 1st day of December, 1846, when the grant of the Al- 
calde was made. 

" But the law as thus declared in England is different from the law 
which obtains in this country, so far as it relates to the presumption of 
the continuance of life. Here, as in England, the law presumes that a 
person who has not been heard of for seven years is dead, but here the 
law, differing in this respect from the law of England, presumes that a 
party oflce shown to be alive continues alive until his death is proved, or 
the rule of law applies by which such death is presumed to have oc- 
curred, that is, at the end of seven years.* And this presumption of life 
is received, in the absence of any countervailing testimony, as conclusive 
of the fact, establishing it for the purposes of determining the rights of 
parties as fully as the most positive proof. The only exception to the op- 
eration of this presumption is when it conflicts with the presumption of 
innocence, in which case the latter prevails. 

"This rule is much more convenient in its application, and works 
greater justice than the doctrine which obtains in England, according to 
the decision in Phene Trusts, that the existence of life at any particular 
time within the seven years, when the fact becomes material, must be 
affirmatively proved. In numerous cases such proof can never be made, 
and property must often remain undistributed, or be distributed between 
the contestants, not according to any settled principles, but according as 
one or the other happens to be the moving party in Court. Take this 
case by way of illustration : A man goes to sea on the first of January, 
1860, and is never heard of again ; his father makes his will and dies on 
the first of July of the same year, leaving to him a portion of his prop- 
erty, and the residue to a distant relative. If persons claiming under 
the missing man apply for the legacy to him, they must fail, for they can- 
not prove that he survived the testator. On the other hand, if the resid- 
uary legatee applies for the property on the ground that the legacy to the 
mi.ssing man has lapsed, he must fail, for he cannot prove that the missing 
man died before the testator ; and the proof of his death in such case would 
be essential to the establishment of the applicant's right. 

" Nor is this rule, as to the presumption of the continuance of life up 
to the end of the seven years, justly subject to the criticism of counsel, 
that it renders absurd the whole basis on which the presumption of death 
rests. There must be some period when the presumption of the contin- 
uance of life ceases and the i:)resumption of death supervenes ; and as in all 
cases whei'e the existence of a presumption arising from the lapse of time 
is limited by a fixed period, it is difficult to assign any valid reason why 
one presumption should cease at the particular time designated, rather 



8:5 ;5 

tliiUi at sonic other jiciiod, and a dil'lfniit pnsnmiit ion arise, except (hat 
it is iniiKH-tant tliat some t inie when llic change takes place should he 
l>eiiiianentl,v cslalilisiied. 

'■ It would lie dillicult to assign any other reason tlian this lor ihe pre- 
sumption, which obtains in some States, that a debt is paid, uikhi which 
no action has been hrongiit, alter tlie lapse of six years; and that it is 
unpaid up to the last hanr oi' the sixth year. The presiiniption of pay- 
ment arisin'g from the lapse ol'tinie without action, it might be said with 
i'(inal i)ropriety, as in the present case with respect to the presumption 
of life to the end of the seventh year, that if tlie presumption of non-pay- 
ment extends ii]) to the end of the sixth year, it renders absurd the whole 
basis upon which the presumption of paynu'Ut rests. So it would b(> diffi- 
cult to give any sufficient reason for admitting in evidence a deed thirty 
years old without other proof of its execution than what is aiiparent on 
its face, and at the same time relusiug admission to a deed except upon 
full proof of its execution, which has existed thirty years less one day — 
except that it is important that the period should be fixed on which the 
presumption arises which supersedes the necessity of direct proof. 

" But it is unnecessary to pursue the subject further. I am of oi)inion 
that the plaintiff" could rely, in the first instance, upon the presumption of 
law as to the continuance of life to establish the fact that John E. Mont- 
gomery was alive on the 1st day of December, 184G, when the grant of the 
Alcalde was issued. This leaves the plaintiff" with a prima facie case for 
reco\ eiy. 

" ^\■e turn now to the consideration of the aftirmative positions of the 
defetidants. They contend that the evidence in the case rebuts the pre- 
sumption of the continirance of life, and warrants the inference that the 
idleged grantee died previous to the lst4)f December, 1846, and that 
the action is barred by the statute of limitations. 

'■ It apx)ears from the evidence that about the middle of November, 
ls4H, a launch from the United States sloop-of-war Warren, a vessel then 
lying in the harbor of San Francisco, and, with the Portsmouth, under 
the command of Captain jSIontgomery, sailed from the harbor with ten 
seamen and two officers for Sutter's Fort on the Sacramento River. 
The two sons of Captain Montgomery w'ere on the launch — ^William H. 
Montgomery, a midshipman and the Sailing Master on the sloop Warren, 
had command of it. John E. Montgomery, who was clerk of Captain 
Montgomery on lioard the Portsmouth, accompanied his brother. It was 
understood at the time on board the Warren that the launch was sent 
with money to pay troops of the United States. Sutter's Fort is distant 
from the harbor of San Francisco about 120 miles, and the voyage be- 
tween the two places is often macle in a single day. An ordinary voyage 
from San Francisco to the Fort and back would not occupy over four or 
ffve days. The launch in this case was propelled both by sails and by 
oars. From the time it sailed no intelligence has' ever been received of 
it, or of either of the officers, or of any of the men who accompanied it. 



334 

About ten days after its departure Capt. Montgomery became uneasy at 
its absence and sent out several boats in search of his sons and the men 
who sailed with them, and these boats were kept on the search for about 
two weeks, but no trace could be found of the launch or men. Of their 
fate, absolute ignorance has existed to this day, now nearly a quarter of 
a century since their disappearance. Captain Montgomery himself left 
the port of San Francisco with the Portsmouth on the 5th or 6th of De- 
cember following. 

" Now it appears to me that there are only two inferences which can 
1)6 driiwn Irom these facts, when considered with reference to the diarac- 
ter and positions of the men and officers: One is, that they died during 
the period within which they should have returned to San Francisco ; 
the other is that they deserted from the service. The latter inference 
cannot be entertained for several reasons : First, de-sertion is the highest, 
and with cowardice, the basest of offences which can be committed by 
men in the naval service; it hiis never, it is believed, been charged upon 
a naval officer of the United States. It can never, therefore, be accepted 
as an explanation of any act of his, except upon the clearest proof Sec- 
ond, if the case had been one only of desertion, and not death, it is highly 
improbable that no intelligence should have been received of any of the 
men during the long period which has since elapsed. Besides, with re- 
spect to the sons of Captain Montgomery, the natural effect of relation- 
ship must have led them to break the silence of years, and to seek com- 
municatioji with their father. 

" The theory of desertion would require us to Ijelieve that officers and 
men conspired to commit the basest of crimes, besides larceny of the pub- 
lic funds in their custody, and that for nearly a quarter of a century they 
have not only kept to themselves the secret of their crime, but have so 
secluded themselves, twelve in number, from observation that no intelli- 
gence respecting any of them has reached the public. 

"If desertion cannot be received as a reasonable explanation of their 
conduct, then death must be inferred. Death is the only fact which rec- 
onciles their conduct with tlie presumption of innocence, and with the 
ordinary conduct which officers and men of the navy pirrsue while in the 
public service. It is the sole fiict which satisfactorily explains, according 
to the common experience and knowledge of men, which are proper 
grounds for judgment, the failure of the officers and men to return to 
San Francisco, and the absolute silence of the world since respecting 
them. 

" My mind is thus led irresistibly from the evidence to the conclusion, 
that the officers and crew on board the launch perished on the voyage to 
Sacramento, within a few days after their departure from San Francisco. 
They probably perished in the bay of San Pablo, or the bay of Suisun. 
If the accident which occasioned their death had occurred in the Sacra- 
mento Eiver, it is proI)Hble that some of the men would have succeeded, 
from the narrowness of the stream, in reaching the shore ; and probably 
some trace of the launch would have been discovered. 



"Findinjr, ;is I do, that John K. JMontgomery died hclorc (he 1st of Dt- 
oember, 184(i, the conclusion follows that the grant of Alcalde r.artlctt, 
intended for him, was inoperative to pass the title, 

" A grant to a person deceased is void. 'I'lie instrument must he issued 
to a person in being, or it will he as invalid as if made to a fictitious party. 
The position of the plaintilf 's counsel that, if tlie grantee were dead at the 
date of the grant, his heir-at-law took the title, is not tenable. The case of 
Landes vs, Brant,* cited in support of this position is an authority against 
it. In that case Clamorgan, the patentee, had died in 1814, and the itatenl 
issued in 1845. The Supreme Court said, that according to the common 
law the patent wasvoid lor want of agrantee, but that the defect Avas cured 
l)y the act of Congress of May 20th, 1836, declaring: ' That in all cases 
Avhere patents for public lands have been or may hereafter be issued, in 
]>ursuance of any law of the United States to a person who had died, or 
who .shall hereafter die, before the date of such patent, the title to the 
land designated therein shall enure to and become vested in the heirs, de- 
visees, and assigns of such deceased patentee, as if the patent had issued 
to the deceased person during life.' This act, of course, has no applica- 
tion to grants issued by Alcaldes in the Pueblo of San Francisco, whose 
authority never extended to the alienation of any public lands, but only 
to lauds belonging to the pueblo." 

The Judge, also, in this case considered at letigtli the 
ettect of the statute of Hrnitations upon the riglit of the 
jilaiiitiff, and still more elaltoi'ately upon a subscMpient mo- 
tion for a new trial. 

The judgment entered was for the defendant. 



United States vs. Flint. — United States vs. Throckmor- 
ton.— United States vs. Carpentier. 

When California was acquired by the United States a 
very large portion of it, particularly that portion situated 
in the valleys, which was fitted for agricultural and graz- 
ing purposes, had been alienated by grants of the former 
government of ]\Iexico. It was the policy of that govern- 
ment to encourage the settlement of the country, and for 
that purpose land was readily granted to settlers, in large 
([uantities, upon their application. 13y the treaty of cession 
with Mexico the United States stipulated for the protec- 

10 How.. 3?:?. 



tion of ;ill riulits of property of ihc iiili:il>itaiits o1' tlic 
coded coniitry. To carry out this stipulation tlie act of 
Congress of March 3, 1851, to settle private huid claims in 
California was passed. The long and tedions proceedings 
which the holders of such grants were required hy it, and 
subsequent acts, to take, in order to secure a recognition of 
tlieii' claims and the patent of the United States, are set 
forth in the opinion af Judge Field which is given below. 
It occupied, in the majoi'ity of cases, several years of labor, 
accompanied in the meantime with anxiety and constant 
conflict witli intruders and squatters. AVhen such patents 
were finally issued, it was hoped and beheved that peace 
and (piiet were secured to the possessors in the enjoyment 
of the land patented, but this proved to be a delusion. 
The land plunderers immediatelj^ commenced making in- 
discriminate charges of fraud, pei'jury, and subornation of 
perjury against the patentees, and of bribery against all 
or most of the officers of the government, through whose 
agency the patentees' title had been examined and estab- 
lished. In some instances their clamors were of sufficient 
potency to obtain fVom the Attorney-General of the United 
States authority to use his name 'in proceedings l)y the 
government for the cancellation of the patents as having 
been fraudulently obtained. The most notable of these 
oases were those designated at the head o'" this chapter. 
They were heard in the Circuit Court by Judges Field, 
Sawyer, and Hoffman, in Felu'uary, 187(5. Elaborate 
opinions were given in them by Judges Field and Ilotl"- 
man, the former confining liiiuself especially to the case 
of the United States vs. Flint, and the latter to that of the 
United States vs. Carpentier. The following is the opinion 
of Judge Field : 

" The case of the United States vs. Flint is a suit in ecjuitj', tlie main 
object of which is to set aside and annul the decree of the District Court 
of the Southern District of California, contirniinii the claim of Teodocio 
Yorba to the Rancho Lonias de Santiago, situated in the county of Los 
Angeles, in this State, and to recall and cancel the patent issued tliereon 
by the United States. It is brought by the District Attorney lor Cali- 
Jbrnia. and ])iirports to be on behalf ol' the United States. 



" It appears, from the allt<;ati<>iis of tlu- l)ill. and tlir record to wliielt 
the bill refers, that, in Oetober, 1 8r)2, the eUiiinant— wlio has sine- il( - 
ceased — presented to the Board of Land Commis.sioners, created under 
the act of Conjiress of .March :M, 1851, to ascertain and setth> private 
hxnd claims iu California, a petition setting fortii his claim to the rancho 
in question, and stating that the same Avas granted to him in -Alay, 18-lfi, 
by the Governor of the Department; that the grant had been approved 
by the Departmental Assembly; that Juridical possession of the land had 
been delivered to him by competent authority, and its boundaries dc- 
lim>d, and that he was then, and had been previously in its ])eaceable oc- 
cupation. 

" With the petition, and as part thereof, the claimant i)resented coi)ies 
of the grant and act of juridical possession, accompanied 1)y a transla- 
tion of the same, and pra_yed that the grant be adjudged valid, and con- 
lirmed to him. The Board of Commissioners considered the claim thus 
presented, and took the depositions of several witnesses in support of it 
and in August, 1854, rendered a decree adjudging it to be valid, and di- 
recting its confirmation. In November, 1855, a petition was filed on be- 
half of the United States, in the District Court for the Southern District 
of California, for a review of the decision, alleging that the claim con- 
tirmed was invalid, and the decision of the Commissioners erroneous ; 
that the allegations of the claimant in his petition were unsupported by 
sufficient proof; and denying that he had any right or title to the land 
confirmed, or to any part of it. The claimant answered this petition, 
joining issue upon its allegations, and the Court took jurisdiction of the 
case, heard it anew, and, in December, 1856, rendered its decree, affirm- 
ing the decision of the Commissioners, and re-adjudged the claim to be 
valid. An appeal from this decree to the Supreme Court of the United 
States was allowed, but the Attorney-General, after some months' delib- 
eration, gave notice that the appeal would not be prosecuted, and there- 
upon the District Court, upon the consent of the District Attornev, va- 
cated the order allowing the appeal, and gave the claimant leave to pro- 
ceed upon its decree as a final decree in the case. A survey of the land 
was subsequently made under the direction of the Surveyor-General of 
the United States for California, and approved by that officer, and in Fi'b- 
ruary, 18G8, a patent was issued to the claimant. 

"It thus appears that, after a contest for nearh' sixteen years before 
officers and tribunals of the United States, the claimant obtained a pat- 
ent from the government — an instrument designed to give to its holder 
security atid protection in the enjoyment of the property covered by its 
terms. All the defendants acquired their interest in the land after the 
decree of confirmation, and two of them after the patent was issued. 

" Nineteen years after the final decree was thus rendered, and eight 
years after the patent was issued, the present bill was filed. And as 
grounds for setting aside and annulling the decree, and recalling and can- 
celling the patent, the District Attorney alleges, upon information and 



belief: 1st. Thiit tlio grant and aot of juridical possession were made 
subsequent to the acquisition of the country in 1846, and were fraudu- 
lently antedated, and that this appears on the face of the original papers 
on file in the Spanish archives in the custody of the Surveyor-General 
of the United States ; that the claimant fraudulently omitted to exhibit- 
a complete record of the proceedings and only presented extracts from 
them, and by this suppression the Law Agent of the United States was 
misled, the United States deprived of all opportunity to contest the con- 
firmation, and the Land Commission and Court were deceived into a 
confirmation of the claim ; and 2d. That previous to the issue of the 
alleged grant, and as early as 1840, the claimant had obtained from the 
Mexican nation a grant of eleven leagues, situated in the counties of 
Sacramento, San Joaquin, and Amador, Avhich was subsequently con- 
firmed by the Supreme Court of the United States ; that, by the laws of 
Mexico, a grant for more than eleven leagues could not be made to the 
same person, and that the claimant was, therefore, disqualified from re- 
ceiving any other grant, and that the existence of this prior grant was 
fraudulently concealed from the Law Agent of the United States, the 
Land Commission, and the District Court. 

"The District Attorney also alleges in the bill, upon information and 
belief, that the approved survey is not in conformity with the boundaries 
given in the diseno, or map accompanying the grant and the act of jurid- 
ical possession, but embraces a much greater quantity, and was made upon 
the fraudulent instigation and procurement of three of the defendants. 
The District Attorney therefore prays that, in case he fail to obtain the 
annulment of the decree, and the recall and cancellation of the patent, 
the boundaries of the tract confirmed may be re-established and fixed in 
accordance with the views stated by him as to the location intended by 
the grant and act of juridical possession. 

"The first inquiry, which naturally arises upon the perusal of this bill, 
is as to what jurisdiction this Court has to interfere with and review the 
determinations of th e Land Com mission and District Court upon the validity 
of claims to land derived from Mexican or Spanish authorities, and of the 
Land Department in approving the surveys of the claims confirmed. The 
questions submitted to the Commission and the District Court were not 
within the ordinary cognizance of a Court of Law, or a Court of Equity. 
They related to the obligations devolving upon our government from' the 
concessions of the former government to its inhabitants. How far these 
concessions should be respected and how far enforced were the matters to 
be considered ; and in their determination the tribunals were to be gov- 
erned by the stipulations of the treaty, the law of nations, the laws, 
usage, and customs of the former government, the principles of equity 
and the decisions of the Supreme Court, so far as they were applicable. 

" By the transfer of California from Mexico to the United States, the 
rights of private property of the inhabitants were not affected. They 
remained as under the former government. The jiublic pro])erty of Mex- 



ico and sovorcijiiif y over the countrv alone i)ass('(l to the I'niti'd Stales. 
This was in accordance with tlie rule of public law, which is recognized 
by all civilized nations, when territory is ceded by one State to another. 
The obligation, theretbre, to protect private rights of property devolved 
upon the United States without any formal declaration to that effect. 
But, in recognition of this obligation, Mexico obtained from the United 
States, in the treaty of cession, an exi)ress stipulation for such i)roteetion. 
And the term property, as apjilied to lands and as used in the treaty, 
comprehends every species of title, perfect or imperfect; 'it embraces,' 
says Chief Justice Marshall, 'those rights which are executory as well as 
those which are executed.' The United States, therefore, took California 
bound by the established principles of public law, and by express stipu- 
lation of the treaty, to protect all private rights of property of the in- 
lial)itants. The obligation rested for its fulfillment in the good faith of 
the government, and required legislative action. It could, therefore, only 
be discharged in such manner, and at such times and upon such condi- 
tions, as Congress might in its discretion direct. In its discharge, such 
action was required as would enable the inhabitants to assert and maintain 
their rights to their property in the Courts of the country as fully and abso- 
lutely as though their titles were derived directly from the United States. 
Where the titles w^ere imperfect, and such was the condition of nearly all 
the titles held in the country, further action, by way of confirmation or 
release from the new government, was essential. With respect to all such 
titles, and indeed, with respect to all matters dependent upon executory 
engagements of the government, the ordinary Courts of the United States, 
whether of Law or Equity, were entirely powerless ; they were without 
jurisdiction, and utterly incompetent to deal with them. 

" By the act of March 3d, 1851, the legislative department prescribed 
the mode in which the provisions of tlie treaty should be carried out, and 
the obligations of the government to the former inhabitants discharged, 
so far as their rights respected the territory acquired ; and thus provided 
the means of separating their property from the public domain. That act 
created a Commission of three persons, to he appointed by the President, 
by and with the advice and consent of the Senate, for the express pur- 
pose of ascertaining and settling private land claims in the State. It 
gave a secretary to the Commission, skilled in the Spanish and English 
languages, to act as interpreter and to keep a record of its proceedings. 
It provided an agent, learned in the law and skilled in those languages, 
to superintend the interests of the United States, and it was made his 
duty to attend the meetings of the Commissioners, to collect testimony 
on behalf the United States, and to be present on all occasions when 
the claimant, in any case, took depositions. To the Commission, every 
person claiming lands in California, by virtue of any right or title de- 
rived from the Spanish or Mexican government, was required, on pain 
of forfeiting his land, to prescTit his claim, together with the documentary 
evidence and t-estimony upon which he relied in its support. The Com- 
2?> 



:M0 

missioners while sitting as a board, and at their chambers, were author- 
ized to administer oaths and take depositions in any case pending before 
them. The testimony was to be reduced to writing, and recorded in 
books provided for that purpose. The Commissioners were obliged to 
hear every case and decide upon the validity of the claim, and, within 
thirty days after their decision, to certify the same, with the reasons on 
vrhich it was founded, to the District Attorney of the district. The act 
provided also for a review of the decision of the Commissioners, upon pe- 
tition of the claimant or the District Attorney, setting forth the grounds 
iipon which the validity or invalidity of the claim was asserted. To the 
petition an answer was required from the contestant, whether claimant or 
the United States. Subsequently, in August, 1852, the act was changed 
in this particular, and when a decision was rendered by the Commission- 
ers they were required to prepare two certified transcripts of their pro- 
ceedings and deci.sion, and of the papers and evidence upon which the 
same were founded — one of which was to be transmitted to the Attor- 
ney-General, and the other tiled with the clerk of the District Court, and 
this filiug operated as an appeal on behalf of the party against whom the 
decision was rendered. In case the decision was against the United 
States, the Attorney-General, within six months after receiving the tran- 
script, was required to cause a notice to be filed with the clerk that the 
appeal would be prosecuted, or it was to be regarded as dismissed. 

" Upon the review by the District Court upon the petition or appeal, 
not merely the evidence before the Commissioners was considered, but 
further evidence could be taken by either the claimant or the govern- 
ment; so that, in fact, the whole matter was heard anew, as upon an orig- 
inal proceeding. From its decision, an appeal lay to the Supreme Court 
of the United States. 

" As thus seen, the most ample powers were vested in the Commission- 
ers and the District Court to inquire into the merits of every claim ; and 
they were not restricted in their deliberations by any narrow rules of 
procedure or technical rules of evidence, but could take into considera- 
tion the principles of public law and of equity in their broadest sense. 
When the claim was finally confirmed, the act provided for its survey 
and location, and the issue of a patent to the claimant. The decrees and 
the patents were intended to be final and conclusive of the rights of the 
parties, as between them and the United States. The act, in declaring 
that they should only be conclusive between the United States and the 
claimants, did, in fact, declare that as between them they should have 
that character. 

"Here, then, we have a special tribunal, established for the express 
purpose of ascertaining and passing upon private claims to land derived 
from Spanish or Mexican authorities, clothed with ample powers to in- 
vestigate the subject and determine the validity of every claim, and the 
propriety of its recognition by the government, capable as any Court 
could possibly be made of detecting frauds copnected with the claim, 



:541 

and wliiisc lirst ini|nin in every case was necessaril.v as lo llie anlhenli- 
cily and uenuineiK'ssol' (lie dociiiueiits upon wiiicli tlie claim was founded. 
'■ We have a s]ieeial jiirisdieliou oC a like nat ure in the 1 )ist lict ( 'ourt, 
to review tiie decision made hy llie Commission, and investifiute anew 
the claim. We have principles prescribed for the government of both 
Commission and Conrt in these cases, and of the Supreme Court, upon 
ai)peal from their decisions, not api)lical)Ie in ordinary proceedings, either 
at law or in equity. And, as slready stated, every person claiming land 
in the State wjis required to present his claim for investigation. The 
onerous duty tlius thrown upon him was relieved of its oppressive char- 
acter by the accompanying assurauce, that, when his claim was adjudged 
valid, the adjudication should be final and conclusive. 

'■On principle, such adjudications cannot be reviewed or defeated by a 
Court of Equity, upon any suggestion that the Commissioners and Court 
misapprehended the law, or were mistaken as to the evidence before 
them, even if that consisted of fabricated papers supported by perjured 
testimony. The very questions presented by the present bill were neces- 
sarily involved in the proceeding before the Commissioners and the Dis- 
trict Court, and the credibility of the testimony ofiered was a matter 
considered by them. Whether the grant produced by the claimant was 
genuine, and the claim resting thereon was entitled to confirmation, were 
the points at issue. The bill avers that the alleged grant was not genu- 
ine because it was ante-dated. But the genuineness of the docunu'ut 
was the matter subjudice, and could not hava been established, and the 
claim based upon it affirmed, except by evidence satisfactory to the Com- 
mission and Court, that it was made at the time stated. 

" It is to no purpose in such case to invoke the doctrine that fraud viti- 
ates all transactions, even the most solemn, and that a Court of Equity 
will set aside or enjoin the enforcement of the most formal judgments 
when obtained by fraud. The doctrine of equity in this respect is not 
(juestioned; it is a doctrine of the highest value in the administration of 
justice, and its assertion in proper cases is essential to any remedial sys- 
tem adequate to the necessities of society. But it cannot be invoked to 
reopen a case in which the same matter has been once tried, or so put in 
issue between the parties that it might have been tried. The judgment 
rendered in such a case is itself the highest evidence that the alleged 
fraud did not exist, and estops the parties from asserting the contrary. 
It is afterwards mere assumption to say that the fraud was perpetrated. 
The judgment has settled the'matter otherwise; it is res judicata. 

" The frauds for which Courts of Eciuity will interfere to set aside or 
stay the enforcement of a judgment of a Court having jurisdiction of the 
subject-matter and the parties, must consist of extrinsic collateral acts 
not involved in the consideration of the merits. They must ])e acts by 
which the successful party has prevented liis adversary from presenting 
the merits of his ca.se. or by which the jurisdiction of the Court has been 
imposed upon. 



342 

"All litigants ure equally entitled to justice from the tribunals of the 
country; they have eijually a right to an impartial judge; they can 
claim equal opportunities of producing their testimony and presenting 
their case, and they can equally have the advocacy of counsel. When- 
ever one party by any contrivance prevents his adversary from having 
this equality with him before the Courts, he commits a fraud upon pub- 
lic justice, which, resulting in private injury, may be the ground of eq- 
uitable relief against the judgment recovered. Thus if, through his in- 
strumentality, the witnesses of his adversary be forcibly detained from 
the Court, or bribed to disobey its subpoena, or the testimony of his ad- 
versary be secreted or purloined, or if the citation to him be given under 
such circumstances as to defeat its purpose, a fraud is committed, for 
which relief will be granted by a Court of Equity, if it produce injury to 
the innocent party. Any conduct of the kind mentioned would tend to 
prevent a fair trial on the merits, and thus to deprive the innocent party 
of his rights. So, if a judge sit when disqualified from interest or con- 
sanguinity; if the litigation be collusive; if the parties be fictitious; if 
real parties affected are lalsely stated to be before the Court, the judg- 
ment recovered may be set aside, or its enforcement restrained, for in all 
these cases there would be the want of the judicial impartiality or the 
actual litigation which is essential to a valid judicial determination. To 
every such case the words of the jurist would be applicable : Fabula non 
judicium, hoc est ; in scena, non in foro, res agitur. 

" The credibility of testiraouy given in a case, bearing upon the issue, 
is not an extrinsic collateral act, but is a matter involved in the consid- 
eration of the merits ; and the introduction of false testimony, known 
or shown to be so, does not affect the validity of the judgment rendered. 
In every litigated case where the interests involved are large, there is 
generally conflicting evidence. Witnesses looking at the same trans- 
action from different stand-points, give different accounts of it. The 
statements of some are unconsciously affected by their wishes, hopes, 
or prejudices. Some, fron; defective recollection, will blend what they 
themselves saw or heard with what they have received from the nar- 
ration of others. Uncertainty as to the truth in a contested case will 
thus arise from the imperfection of human testimony. In addition to 
this source of uncertainty may be added the possibility of the perjury of 
witnesses, and the fabrication of documents. The cupidity of some and 
the corruption of others may lead to the use of these culpable means of 
gaining a cause. But every litigant enters upon the trial of a cause, 
knowing not merely the uncertainty of human testimony when honestly 
given, but that, if he has an unscrupulous antagonist, he may have to 
encounter frauds of this character. He takes the chances of establish- 
ing his case by opposing testimony, and by subjecting his opponent's 
witnesses to the scrutiny of a searching cross-examination. The case is 
not the less tried on its merits, and the judgment rendered is none the 
less conclusive, by reason of the false testimony produced, Thus, if an 



348 

artion be brought upon ;i promissory note, and issui- be joined on its ex- 
ecution, and judgment go for the plaintiff, and there is no appeal, or if 
an appeal be taken, and the judgment be affirmed, the judgment is con- 
clusive between the parties, although, in fact, the note may have been 
forged and the witnesses who proved its execution may have committed 
perjury in their testimony. The rules of evidence, the cross-examina- 
tion of witnesses, and the fear of criminal prosecution with the produc- 
tion of counter testimony, constitute the only security afforded by law 
to litigants in such cases. A Court of Equity could not afterwards in- 
terfere upon an allegation of the forgery and false testimony, for that 
would be to reopen the case to a trial upon the execution of the note, 
which had already been subjudice, and passed into judgment. 

"These views are in consonance with the adjudged cases. We have 
looked in vain through all those cited by the learned associate counsel in 
the Throckmorton Case for anything infringing upon them. In the 
Djichess of Kingston's Case the sentence of the Spiritual Court was held 
to be fraudulent and void, because obtained by collusion of the parties. 
And, in giving the opinion of the judges to the House of Lords, Chief 
Justice De Grey observed that, although a judgment was conclusive 
evidence upon the point involved, and could not be impeached from 
within, yet, like all other acts of the highest judicial authority, could be 
impeached from without, and that fraud was an extrinsic collateral act 
which vitiated the most solemn proceedings of Courts of Justice. 

"In the Shedden Case (1 Macqueen, 535) the question was whether a 
judgment of the Court of Sessions of Scotland against the legitimacy of 
the plaintiff, affirmed by the House of Lords, could be attacked in an- 
other suit in the inferior Court, and treated as a nullity for collusive sup- 
pression of proof which would have established his parents' marriage. 
The House of Lords held that the judgment could be thus attacked, but 
that the allegations of fraud and collusion in the case were not suffi- 
ciently specific, pointed, and relevant to be admitted to proof. Opinions 
in the case were given by the Chancellor and two of the. Law Lords, 
Brougham and St. Leonards. The judgment of the House of Lords, said 
Brougham, was to be 'dealt with in the inferior Court before which its 
merits were brought ; that is to say, not the merits of the judgment, but 
the merits of the parties who had so fraudulently obtained it — the ques- 
tion being, was it a real judgment or not ? For that is the only question in 
such cases, and that is the question in this case.' 

" In Termor's Case (2 Coke, 77) the tenant continued to pay rent to his 
landlord after he had levied a fine with proclamation to bar the inheri- 
tance, and thus kept the latter in ignorance of that proceeding. The ten- 
ant attempting, after the expiration of the leiise, to hold the property on 
the ground that the right of the landlord was barred by the lapse of time 
allowed by statute to make an entry or l)ring his action after the fine, 
the Court, upon a bill filed for relief, held that he was not barred by rea- 
son of the deception practiced upon him. The payment of the rent was 



844 

ill fact ii (let'liinitioii by tlu- tenant that his relation to the huicnord had 
not changed, and operated as a fraud preventing the hitter from asserting 
his rights. 

"Great stress is placed by the learned associate counsel upon these last 
two cases, but it is evident, from the statement we have made, that the 
fraud alleged in both cases was an extrinsic collateral act which pre- 
vented the complaining party, in one instance, from having the merits of 
his^case considered, and in theother instance, from taking proceedings for 
his protection. So in all the other cases, extrinsic collateral acts of fraud 
will be found to constitute the grounds upon which the Court has acted. 
And on principle it must be so, for if the merits of a case could be a sec- 
ond time examined by a new suit, upon a suggestion of false testimony, 
documentary or oral, in the tirst case, there would be no end to litigation. 
The greater the interests involved in a suit, the severer generally the con- 
tention ; and in the majority of such cases the recovery of judgment 
would be the occasion of a new suit to vacate it, or restrain its enforce- 
ment. If the present bill could be sustained upon the grounds alleged, 
and we should set aside the decree of the District Court, a new bill might 
years hence be filed to annul our judgment and reinstate the original de- 
cree, on the same grounds urged in this case, that fabricated papers and 
false testimony had been used before us, which eluded the scrutiny of the 
counsel and escaped our detection. Of course, under such a .system of 
proceduie, the settlement of land titles in this State would be postponed 
indefinitely, and the industries and improvements, which require for their 
growth the assured possession of land, would be greatly paralyzed. 

" For the reasons stated, we are of opinion that there is no ground of 
fraud presented by the bill for the interference of a Court of Equity with 
the decree of confirmation rendered by the District Court. It is upon 
that ground alone that the bill proceeds. It is not a bill of review for 
new matter, discovered since the decree. A bill of that character can 
only be filed by leave of the Court ; and that cannot be obtained with- 
out a. showing that the new matter could not have been used in the orig- 
inal cause, and could not previously have been ascertained by reasonable 
diligence. It does not lie where the decree in the original cause was ob- 
tained by consent, or where objections to the decree rendered were sub- 
sequently withdrawn and consent was given to its execution. And it 
can only be allowed by a court possessing the power, upon a review of 
the case, to determine the lights of the parties to the property, or in the 
matter involved, or, at least, authorized to remit the case to a tribunal 
having adequate jurisdiction for that purpose. The present bill was not 
filed upon leave ; and this Court possesses no power to determine the 
right of the claimant, upon any review of the case, to a confirmation of his 
claim, and the only tribunal to which such a determination could be re- 
mitted has long since ceased to exist. 

" But there are other and equally potential grounds against the main- 
tenance of the present suit. The Land C'ommission and the District 



345 

Court, tliouf^h exercising a speeial jurisdiction, were invested witli very 
large and extensive powers. They were not, as already staled, lumiid in 
their decisions to any strict rules of technical law, but could he governed 
by the principles of equity in their widest scope. The result of their in- 
quiries was to guide the goveriuuenl in the discharge of its treaty obliga- 
tions. Considerations, therefore, which could not be presented to ordi- 
nary tribunals, might very properly be regarded by them. 

"After the determination of the Commissioners, if against the United 
States, the control of the proceedings was placed with the Attorney-Gen- 
eral. It rested with him exclusively to determine \vhether the appeal 
from the Commissioners, taken by filing a copy of the transcript witli 
the clerk of the District Court, should be prosecuted or dismissed. So 
also when an appeal was taken from the decree of the District Court, he 
could, in the suuie way, direct its prosecution or dismissal. Considera- 
tions of policy, as well as of strict right, might be deemed by himsuffi- 
eient to control his action in this respect. In coming to a determination 
on the subject, he was not restricted to an examination of the transcript 
transmitted to him : he could look into the archives of the former gov- 
ernment, the reports of officers previously appointed to examine into the 
subject of the land titles of the State, the records of the Land Department 
at Washington, and any correspondence existing between Mexico and the 
United States respecting the title. His power was unlimited, and the 
propriety or legality of his action in any case was not the subject of re- 
view by any tribunal whatever, and it could only be revoked by the ap- 
pellate Court upou his own application. 

" In the case of Yorba, the appeal from the decree of contirmation, 
rendered by the District Court, was dismissed upon notice of the Attor- 
ney-General that the appeal would not be prosecuted, and thereupon the 
decree became final. The decree was thus assented to by the highest 
legal officer of the government, specially charged with supervision over 
the subject. The validity of the decree, and of the grant upon whicli 
the claim of Yorba was founded, was thus forever put at rest. From 
that day it could never be successfully questioned in any form of pro- 
cedure, or by any tribunal known to our laws. It was a closed (juestiou 
for all time. 

" But this is not all. The defendants purchased their interests after 
the final decree. They are charged in the bill, it is true, generally, with 
notice of the alleged frauds of the claimant ; but how, or where, or in 
what manner they had notice, is not averred. The vagueness of the al-' 
legation gives it only the weight of mere clamor. But, assuming that 
the defendants had sufficient notice to put them upon inquiry, they had 
at the same time notice of the decree, which was an adjudication — the 
highest possible evidence— that the alleged frauds had no actual exist- 
ence, and that to this adjudication the government, through its Attor- 
ney-General, had consented. They had a right, theretbre, to rely im- 
plicitly upon the decree, and rest in confidence upon the assurance of its 



84B 

finality, given by the only officer of the United States who could ques- 
tion it. They can, therefore, justly insist upon protection in the prop- 
erty purchased ; and no Court of Equity, under the circumstances, would 
lend its aid to the commission of so great a wrong as the destruction of 
their title. 

" Where the District Attorney of this district obtains authority to in- 
stitute in the name of the United States a suit for that purpose, we are 
not informed. There is no law of CongTess which requires it or allows 
it; and we have sought in vain for the power of the Attorney-General 
to direct it. That officer can, it is true, institute or direct the institution 
of suits for the reA'ocation or cancellation of patents of lands belonging 
to the United States, issued upon false or fraudulent representations to 
the executive officers of the Land Department, or upon their misconstruc- 
tion of the law. He is the legal adviser of the heads of the executive 
departments, and if they are fraudulently imposed upon, or have mis- 
taken the law, he can take the necessjary legal proceedings to recall the 
results of their action. But that is a very different matter from institut- 
ing or directing proceedings to vacate or recall patents founded upon de- 
crees of a Commission or Court exercising a special and exclusive juris- 
diction over the subjects investigated, where the law declares that such 
decrees shall be tinal and conclusive between the parties, and to which 
decrees the Attorney-General in office at that time assented. Tho.se de- 
crees established the obligation of the United States to the claimants un- 
der the treaty, and if the 'legislative department, which authorized the 
proceedings before the Commission and Court, be .satisfied with the result, 
it is difficult to see upon what pretence the Attorney-General can .seek to 
disturb it. If the Attorney-General, by virtue of his office, possesses any 
.such extraordinary power, as claimed in the case, to disregard the action 
of his predeces.sor, and to renew litigation at his pleasure respecting the 
titles of a whole people, upon a suggestion that faLse te.stiraony may have 
been used in the original proceedings, the .security vphich the holders of 
patents from the government issued upon such decrees have hitherto felt 
in their posses,sion,s, is unfounded and delusive. We must have further 
evidence than is presented to us before we can admit the existence of a 
power .so liable to abuse, and so dangerous to the peace of the community. 

" But if we admit that the Attorney-General is authorized to direct the 
institution of a suit like the present, in the name of the United States, 
and that the District Attorney has been thus directed, his power in this 
respect must be exercised in subordination to those rules of procedure 
and those principles of equity which govern private litigants seeking to 
avoid a previous judgment against them. The United States, by virtue 
of their sovereign character, may claim exemption from legal proceedings, 
but when they enter the Courts of the country as a litigant they waive 
this exemption, and stand on the same footing with private individuals. 
Uule-ss otherwise provided by statute, the same rules as to the admi.ssi- 
bility of evidence are then applied to them : the same strictness as to 



347 

motions iiiid uppoals is cnlbrcod ; they nmst move for a new trial or take 
an appt-al within the same time and in like manner, and they are eciually 
bound to act upon evidence within their reach. And, when they ro into 
a Court of Ijiuity, they must equally present a case by allefjation and 
proof entitling them to equitable relief. 

"Although, on grounds of wise public policy, no statute of limitations 
runs against the United States, and no laches in bringing a suit can be 
imputed to them, yet the fiicility with which tlie truth could originally 
have been shown by them if different from the finding made ; the changed 
condition of the parties and of the property from lapse of time ; the dif- 
ticulty, from this cause, of meeting objections which might, perhaps, at 
the time have been readily explained ; and the acquisition of interests by 
third i)arties upon faith of the decree, are elements which will always be 
considered by the Court in determining whether it be equitable to grant 
the relief prayed. All the attendant circumstances of each case will be 
weighed, that no wrong be done to the citizen, though the government 
be the suitor against him. 

" The bill in the present case not only does not disclose, as already 
shown, any extrinsic collateral acts of fraud constituting grounds for eq- 
uitable relief, but alleges that the ante-dating of the grant and act of .ju- 
ridical possession, which form the gravamen of complaint, appear on the 
face of the original documents on file in the archives in the custody of 
the Surveyor-General of the United States. If this be so, the Law Agent 
should have shown the fact by the production of the originals. He 
should have inspected original documents in all cases where copies alone 
were ottered by the claimant, whether suspicions were excited or not as 
to their genuineness. The law of Mexico with respect to the alienation 
of her public lands was well known at the time. It had been the sub- 
ject of reports to the government by agents employed to look into the 
grants of the former government, and of consideration and comment by 
the Courts in numerous instances. That law pointed out the proceedings 
required for the acquisition of titles of land from Mexico, and showed 
that a record of them was required to be kept. That record was in the 
posses.sion of the United States, and should have been examined by the 
Law Agent of the government whenever any of its entries or documents 
were the foundation of a claim. He was appointed for the express pur- 
pose of looking after and protecting the interests of the United States. 
The allegation that the claimant was guilty of a fraudulent suppression 
in not producing all the documents in the archives respecting his title is 
puerile. He produced all that was necessary to present his claim, and 
if the Law Agent was not satisfied with them, he should have made his 
objection at the time. The archives were not in an ' unsearchable con- 
dition,' as alleged, until 1858, but even if they had been, the Law Agent 
could still have insisted upon the production of the originals for inspection. 
"After the archives were arranged and the alleged " unsearchable con- 
dition ' ceased, nearly eighteen years elapsed before the present bill was 



-348 

filed, and no excuse is offered for this delay. During these eighteen 
years, which constitute a period equivalent almost to a century in other 
countries, great changes in the condition and value of real property in 
the State have occurred. During this period, the original claimant, who 
might perhaps have explained the alleged alteration of dates, has de- 
ceased, and third parties have acquired his interests, and, it is said, have 
made valuable and expensive improvements upon the property. Courts 
of Equity will not entertain a suit to vacate a decree, even in case of 
palpable frauds, when there has been unnecessary delay in its institu- 
tion, and the rights of third parties, as in this case, have intervened in 
reliance upon the decree. Considerations of public policy require prompt 
action in such cases, and if, by delay in acting, innocent parties have ac- 
quired interests, the Courts will turn a deaf ear to the complaining 
])arty. This is the doctrine of equity, irrespective of any statute of lim- 
itations, and irrespective of the -character of the suitor. It is essential 
that this doctrine should be vigorously upheld for the repose of titles 
and the security of property. 

" It only remains to notice the allegations of the bill with respect to a 
l)rcvious grant of eleven leagues, stated to have been obtained by the 
claimant from the Mexican nation in 1840, and the allegation that the 
approved survey of the claim confirmed was not in accordance with the 
map accompanying the grant, and the act of juridical possession. 

" Whether the issue of a previous grant to the claimaat for the quantity 
designated would have disqualified him from receiving a second grant, 
was a question of law, to be determined by the Commissioners and Dis- 
trict Court; and any error committed in its determination could only be 
corrected on appeal. And the allegation of fraudulent concealment by 
the claimant of the existence of the prior grant is an idle one in the face 
of the fact that the Mexican law, of which the Court is bound to take 
notice, required a record of every grant to be kept, and that this record, 
with other public property, passed to the United States on the cession of 
the country. If there was any such grant as stated, so far from its ex- 
istence being concealed by the claimant, the evidence of its existence 
was in the custody of the government, and its attention had been spe- 
cially directed to the document by agents appointed to ascertain what 
grants had been made by the former government, who examined the 
records and reported a list of all grants found among them. Allegations 
thus in conflict with the public records and public history of the country 
need not be specially controverted any more than allegations at variance 
with the settled law. A fraudulent concealment by the claimant of a 
public record, never in his possession, but always in the keeping of the 
government, and open at all times to the inspection of the world, was a 
thing impossible. The bill might with as much propriety have alleged 
that the claimant concealed from the Court one of the public statutes of 
the country. 

" As to the alleged error in the survey of the claim, it need only be ob- 
served that the whole subject of surve3\s upon confirmed grants, except 



as providod by the act of l.^CO, whii-h iliil not ciubnitr this case, u as un- 
der tlK' control of tlie Land Department, and was not sul-jcct to tlic su- 
pervision of the Courts. Whether the survey conforms to the claim con- 
lirmed or varies from it. is a matlcr with which the Courts ha\c uotliiiiji 
to do: tliat belongs to a department whose action is not tlie subject of 
review by tlie judiciary in any case, liowevcr erroneous. The Courts can 
only examine into the correctness of a survey when, in a controversy be- 
tween parlies, it is alleged that the survey made infringes upon the prior 
rights of one of them: and can then look, into it only so far as may be 
necessary to protect such rights. They cannot order a new survey or 
change that already made. 

" It follows, from the views we have expressed, tliat the demurrer to 
the bill jnust be sustained ; and as no amendment would reach the princi- 
pal objection, namely, that the alleged frauds are not such <\lriiisic eol- 
lateral acts as would justify tlie interference of e(iuity with the decree of 
contirmatiou, the bill must be dismissed. 

•'The priniipal objection to the bill in this case applies with equal 
tbrce to the bills in the Throckmorton and Carpentier Cases, and the de- 
murrers in those cases will also be sustained and the bills dismissed. 
The allegation in the Throckmorton Case, that the defendant Howard 
had notice of the fabrication of the papers from the claimant, given 
in other proceedings before the Board, and other allegations imput- 
ing guilty knowledge to him and to the other defendants, are too 
vague and general to merit consideration, made as they are in a bill 
not verified and only upon information and belief. The District Attor- 
ney should at least have stated the sources of his information and the 
grounds of his belief, that the Court might see that the former was 
.something better than idle rumor, and the latter .something more than 
unfoundwl credulity. 

'■ The defendant, Howard, has tiled an answer denying under oMh. 
generally and specifically, every charge against him, but by stipula- 
tion on the argument, he is to have the benefit of the decision upon the 
demurrer. 

•■ As the questions presented in the several cases are of vast importance 
to the people of this State, the District Judge, whose great experience in 
the examination of land cases gives weight to his views, will read a con- 
curring opinion with special reference to the Carpentier Case. 

•' Our judgment is, that the demurrers be sustained in the three cases, 
and the bills be dismissed ; and it is so ordered." 

Ill this Opinion Judges Sawyer and Hoffman concurred, 
Tlie cases were appealed to the Supreme Court of the 
United States, where the one against Throckmorton was 
argued and confirmed. — (8 Otto, 61.) The disposition of 
the other cases followed this decision and were confirmed 
without rontest. 



350 



The Eureka Ca^^e. 



From the time gold was discovered m California, in 
1848, until 186G — a period of eighteen years — there was 
no legislation b}^ Congress for the sale of the mineral 
lands of the government. The value of property in mines 
on the public lands, with the machinery and mills con- 
structed either for their development or the separation of 
the precious metals from the ores— of gold at first, and 
afterwards of silver also — can hardly be estimated. It 
amounted, including the mining property in Xevada and 
adjoining Territories, as well as in California, to several 
hundred millions of dollars. Until 1866 all this vast prop- 
ei'ty was governed by the regulations and customs of min- 
ers as enforced and moulded by the Courts, and sanctioned 
by the legislation of the Pacific States and Territories. 
Upon them the miners relied with confidence for protec- 
tion, and felt absolute security in their possessions. A 
more just and reasonable system for the development of a 
great industry was never devised by the wisest of legisla- 
tors. In July, 1866, Congress passed an act entitled "An 
act granting the right of way to ditch and canal owners 
over public lands, and for other purposes," of wliich Sena- 
tor Stewart, of ^N^evada, was the author. This act, in its 
first section, declared that the mineral lands of the public 
domain, both surveyed and unsurveyed, were free and open 
to exploration and occupation b}' citizens of the United 
States, and those who had declared their intention to be- 
come citizens, subject to such regulations as might be pre- 
scribed by law, and the local customs or rules of miners, 
in their several mining districts, so far as the same were 
not in conflict with the laws of the United States. In 
other sections provisions were made for acquiring the title 
of the United States to claims in veins or lodes of quartz, or 
other rock in place, bearing gold, silver, cinnabar, or copper, 
where the possessory right to such claims had been pre- 
viously acquired under the customs or rules of miners, and 



3-)! 

upon whicli u certain aniomit in lahoi- and iiniirovcnu-ntrt 
had been expended. Altliouii-h the sections of tin- act of 
18(36, containing these provisions, were repealed hy the 
act of May 10th, 1872, "To promote the development of 
the mining resources of the United States," the provisions 
themselves were in substance re-enacted in the repealing 
act. The object of the two acts, and also of the act of 
1870, amending that of 1866, was not to interfere with the 
possessory rights of the miners acquired under their own 
regulations, but rather to secure them by the patent of the 
United States, and also to prescribe, by general law, the 
extent of ground which an individual claim might cover. 
Until 1857, the principal amount of mining was done on 
placer claims. These became, by that time, so fully worked 
out as to yield little remuneration to the laborer. More 
profitable mining, both for gold and silver, was found in 
veins or lodes of quartz, and mills for crushing quartz were 
consequently erected in mining districts in great numbers. 
Large deposits of gold were also found in the channels of 
old streams, buried under the hills, in some instances to 
the depth of over one hundred feet from the surface, and 
hydraulic machinery was employed to wash off the super- 
incumbent mass and separate the mineral. 

Litigation followed the passage of the acts of C'ongress, 
in many cases. The meaning of the terras used had to be 
judicially defined and applied. Miners were not agreed 
as to what was intended by the terms " vein or lode " of 
quartz, or other rock in place, bearing gold or silver. The 
acts gave to the owner of claims on lodes a right to follow, 
within certain parallel lines, the metal found within them, 
and this right was of great importance and value and was 
tlie occasion of much controversy. A case fi'om the Eu- 
reka Mining District, in the State of Nevada, between the 
p]ureka Consolidated Mining Company and the Richmond 
Mining Company, brought the question as to the meaning 
of those terms before the Circuit Court for decision, at it* 
July term in 1877. At the trial— which was had without 



tlio intorv(Mitioii oi'a jnrv — ]u(\^v Sawvcv, and also , Indigo 
Hillyer ol' the Xevada District, occupied the bench with 
Judge Field. The case was tried, l)y stipulation of parties, 
at San Francisco. There were three principal questions 
in the case: 1st. "Whether the mining ground in contro- 
versy was part of one vein or lode, within the mean- 
ing of those terms in the act of Congress; 2d. Whether 
the patents of the plaintiif were valid, notwithstanding the 
end lines of the locations patented were not parallel, as 
required by the act of 1872; and 3d. Whether the ground 
in dispute had been assigned to the plaintiff in a settle- 
ment made in June, 187o. 

The Court gave an affirmative answer to these questions. 
Upon the first two, Judge Field, in delivering the opinion 
of the Court — first stating the case — said as follows : 

" The premises in controversy are of great value, amounting by estima- 
tion to several hundred thousands of dollars, and the case has been pre- 
pared for trial with a care proportionate to this estimate of the value of 
the property ; and the trial has been conducted by counsel on both sides 
with eminent ability. 

"Whatever could inform, instruct, or enlighten the Court has been 
presented bj^ them. Practical miners have given us their testimony as 
to the location and working of the mine. Men of science have explained 
to us how it was probable that nature in her processes had deposited the 
mineral where it is found. Models of glass have made the hill, where 
the raining ground lies, transparent, so that we have been able to trace 
the course of the veins and see the chambers of ore found in its depths. 
For myself, after a somewhat extended judicial experience, covering now 
a period of nearly twenty years, I can say that I have seldom, if ever, 
seen a case involving the consideration of so many and varied particu- 
lars, more thoroughly prepared or more ably presented. And what has 
added a charm to the whole trial has been the conduct of counsel on 
both sides, who have appeared to assist each other in the development 
of the facts of the case, and have furnished an illustration of the truth 
that the highest courtesy is consistent with the most earnest contention. 

" Tiie mining ground which forms the subject of controversy is situ- 
ated in a hill known as Ruby Hill, a spur of Prospect Mountain, distant 
abo'ut two miles from the town of Eureka in Nevada. Prospect Moun- 
tain is several miles in length, running in a northerly and southerly 
course. Adjoining its northerly end is this spur called Ruby Hill, which 
extends thence westerly, or in a southwesterly direction. Along and 
through this hill, lor a distance .slightly exceeding a mile, is a zone of 



liniesUmo, in wliicli, at (liri'ciciit places throunhoul its len;j,tli. and in va- 
rious forms, mineral is I'ound, tiiis mineral appearing sometimes in a se- 
ries or succession of ore bodies more or less closely connected, sometimes 
in apparently isolated eliamhers, and at other times in what would seem 
to be scattered grains. And our i)riiicipal inquiry is to ascertain the 
character of this zone, in order to determine whether it is to be treated 
as constituting one lode, or as embracing several lodes, as that term is 
used in the acts of Congress of 18()6 and 1872, under which the i)arties 
have acquired whatever rights they possess. In this inquiry the first 
thing to be settled is the meaning of the term in those acts. This mean- 
ing being settled, the physical characteristics and the distinguisliing tea- 
tures of the zone will be considered. 

" Those acts give no definition of the term. They use it always in con- 
nection with the term vein. The act of 1866 provided for the acquisition 
of a patent by any person or association of persons claiming 'a vein or 
lode of quartz, or other rock in place, bearing gold, silver, cinnabar, or 
copper.' The act of 1872 speaks of veins or lodes of quartz or other rock 
in place, bearing similar metals or ores. Any definition of the term 
should, therefore, be sufficiently broad to embrace deposits of the several 
metals or ores here mentioned. In the construction of statutes, general 
terms must receive that interpretation which will include all the in- 
stances enumerated as comprehended by them. The definition of a lode 
given by geologists is, that of a fissure in the earth's crust filled with 
mineral matter, or more accurately, as aggregations of mineral matter 
containing ores in fissures. — (See Von Cotta's Treatise on Ore Deposits, 
Prime's Translation, 26.) But miners used the term before geologists at- 
tempted to give it a definition. One of the witnesses in this case, Dr. 
Raymond, who for many years was in the service of the general govern- 
ment as Commissioner of Mining Statistics, and in that capacity had oc- 
casion to examine and report upon a large number of mines in the States 
of Nevada and California, and the Territories of Utah and Colorado, says 
that he has been accustomed as a raining engineer to attach very little 
importance to those cases of classification of deposits, which simply in- 
volve the referring of the subject back to verbal definitions in the books. 
Tlie whole subject of the classification of mineral deposits, he states, to 
be one in which the interests of the miner have entirely overridden the 
reasonings of the chemists and geologists. 'The miners,' to use his lan- 
guage, ' made the definition first. As used by minere, before being defined 
by any authority, the term lode simply meant that formation by which 
the miner could be led or guided. It is an alteration of the verb lead ; 
and whatever the miner could follow, expecting to find ore, was his lode. 
Some formation within which he could find ore, and out of which he 
could not expect to find ore, was his lode.' The term lodestar, guiding 
star, or north star, he adds, is of the same origin. Cinnabar is not found 
in any fissure of the earth's crust, or in any lode as defined by geologists, 
yet the acts of Congress speak, as already seen, of lodes of quartz, or rock 



854 

in place, bearing cinnabar. Any definition of lode as there nsed, which 
did not embrace deposits of cinnabar, would be as defective as if it did 
not embrace deposits of gold or silver. The definition niiist apply to de- 
posits of all the metals named, if itappl}^ to a deposit of any one of them. 
Those acts were not drawn by geologists or for geologists ; they were not 
framed in the interests of science, and consequently with scientific accu- 
racy in the use of terms. They were framed for the protection of miners 
in the claims which they had located and developed, and should receive 
such a const ruction as will carry out this purpose. The use of the terms 
vein and lode in connection with each other in the act of 1866, and their 
use in connection with the term ledge in the act of 1872, would seem to 
indicate that it was the obiect of the legislator to avoid any limitation in 
the application of the acts, which a scientific definition of any one of 
these terms might impose. 

" It is difficult to give any definition of the term as understood and 
used in the acts of Congress, which will not be subject to criticism. A 
fissure in the earth's crust — an opening in its rocks and strata made by 
some force of nature, in which the mineral is deposited, would seem to 
be essential to the definition of a lode in the judgment of geologists. 
But to the practical miner the fissure and its walls are only of importance 
as indicating the boundaries within which he may look for and reason- 
ably expect to find the ore he seeks. A continuous body of mineralized 
rock lying within any other well-defined boundaries on the earth's sur- 
face aijd under it, would equally constitute in his eyes a lode. We are 
of opinion, therefore, that the terra as used in the acts of Congress is ap- 
plicable to any zone or belt of mineralized rock lying within boundaries 
clearly separating it from the neighboring rock. It includes, to use the 
language cited by counsel, all deposits of mineral matter found through 
a mineralized zone or belt coming from the same source, impressed with 
the same forms, and appearing to have been created by the same pro- 
cesses. 

" Examining now, with this definition in mind, the features of the zone 
which separate and distinguish it from the surrounding country, we ex- 
perience little difficulty in determining its character. We find that it is 
contained within clearly defined limits, and that it bears unmistakable 
marks of originating, in all its parts, under the influence of the same 
creative forces. It is bounded on the south side, for its whole length, at 
least so far as explorations have been made, by a wall of quartzite of sev- 
eral hundred feet in thickness ; and on its north side, for a like extent, 
by a belt of clay, or shale, ranging in thickness from less than an inch to 
seventy or eighty feet. At the east end of the zone, in the Jackson 
mine, the quartzite and shale approach so closely as to be separated by a 
bare seam, less than an inch in width. From that point they diverge, 
until on the surface in the Eureka mine, they are about 500 feet apart, 
and on the surface in the Richmond mine, abont 800 feet. The quartzite 
has a general dip to the north, at an angle of about 45 degrees, subject 



to sonu' local viuiatioiis, as llir course cliauijcs. Tlic clay or shale is 
more ))eri)eii(lifular, liavin<>; a dij) at an au^te of abont 80 ileurees. At 
some depth under the snrfaee these two l»oniularies of the limestone, de- 
scending at their respective angles, may come together. In somt> of the 
levels worked, they are now only from two to three hundred feet apart. 

"The limestone found between these two limits — the wall of (piartzite 
and the seam of clay or shale — has. at some period of the world's hi.story, 
been subiected to some dynamic force of nature, by which it has been 
broken up, crushed, disintegrated, and fissured in all directions, so as to 
destroy, except in three or ibvir ydaces of a few feet each, so far as ex])lora- 
tions show, all traces of stratification ; thus specially fitting it, accord- 
ing to the testimony of the men of science, to whom we have listened, 
for the receiitioii of the mineral whieli, in ages i)ast. came up from the 
depths below in solution, and was dejiosited in it. E\ idence that the 
whole nuiss of limestone has been, at some period, lifted u]) and moved 
along the quartzite, is found in the marks of attrition engraved on th(> 
rock. This broken, crushed, and fissured condition pervades, to a greater 
or less extent, the whole body, showing that the same forces which ope- 
rated upon a part, operated upon the whole, and at the same time. 
Wherever the quartzite is exposed the marks of attrition apjiear. Below 
the quartzite no one has penetrated. Above the shale the rock has not 
been thus broken aiul crushed. Stratification exists there. If in some 
isolated places there is found evidence of disturbance, that disturbance 
has not been sufficient to affect the stratification. The broken, crushed, and 
fissured condition of the limestone gives it a specific, individual charac- 
ter, by which it can be id(>ntified and separated from all other limestone 
in the vicinity. 

" In this zone of limestone numerous caves or chambers are found, 
further distinguishing it from the neighboring rock. The limestone be- 
ing broken and crushed up as stated, the water from above readily pene- 
trated into it, and operating as a solvent, formed these caves and chambers. 
No similar cavities are found in the rock b-yond the shale, its hard and 
unbroken character iu)t ))ei'mittiiig, or at least opposing such iietion from 
the water above. 

"Oxide of irou is also found in numerous places throughout the zone, 
giving to the miner assurance that the metal he seeks is in its vicinity. 

" This broken, crushed, and fissured condition of the limestone, the 
presence of the oxides of iron, the (;aves or chambers we have mentioned, 
with the wall of quartzite and seam of clay bounding it, give to the zone, 
in the eyes of the prai-tical miner, an individuality, a oneness as com- 
plete as that which the most perfect lode in a geological sense ever pos- 
sessed. Each of the characteristics named, though produced at a differ- 
ent period from the others, was undoubtedly caused by the s.iTue forces 
operating at the same time upon the whole body of the limestone. 

'■ Throughout this zon." of limestone, as we have already stated, min- 
eral is found in numerous fi.ssures of the rock. According to the ojjin- 

24 



856 

ions or all the scientific men who have been examined, this mineral was 
brought up in solution from the depths of the earth below, and would, 
therefore, naturally be very irregularly deposited in the fissures of the 
crushed matter, as these fissures are in every variety of form and size, 
and would also find its way in minute particles in the loose material of 
the rock. The evidence shows that it is suflQciently diffused to justify 
giving to the limestone the general designation of mineralized matter — 
metal-bearing rock. The three scientific experts produced by the plain- 
tiff, Mr. Keyes, Mr. Eaymond, and Mr. Hunt, all of them of large experi- 
ence and extensive attainments, and two of them of national reputation, 
have given it as their opinion, after examining the ground, that the zone 
of limestone between the quartzite and the shale constitutes one vein or 
lode, in the sense in which those terms are used by miners. Mr. Keyes, 
who lor years was superintendent of the mine of the plaintiff, concludes 
a minute description of the character and developments of the ground, 
by stating that in his Judgment, according to the customs of miners in 
this country and common sense, the whole of that space should be con- 
sidered and accepted as a lead, lode, or ledge of metal-bearing rock in 
place. 

" Dr. Raymond, after giving a like extended account of the character 
of the ground, and his opinion as to the causes of its formation, and stat- 
ing with great minuteness the observations he had made, concludes by 
announcing as his judgment, after carefully weighing all that he had seen, 
that the deposit between the quartzite and the shale is to be considered 
as a single vein in the sense in which the word is used by miners — that 
is, as a single ore deposit of identical origin, age, and character through- 
out. 

"Dr. Hunt, after stating the result of bis examination of the ground 
and his theorj^ as to the formation of the mine, gives his judgment as 
follows : 

" ' My conclusion is this: that this whole mass of rock is impregnated 
with ore; that although the great mass of ore stretches for a long dis- 
tance above horizontally and along an incline down the foot-wall, as I 
have traced it, from this deposit you can also trace the ore into a succes- 
sion of great cavities or bonanzas lying irregularly across the limestone, 
and into smaller caverns or chasms of the same sort; and that the whole 
mass of the limestone is irregularly impregnated with the ore. I use the 
word impregnation in the sense that it has penetrated here and there ; 
little patches and stains, ore-vugs and caverns and spaces of all sizes and 
all shapes, irregularly di.ssemlnated through the mass. ... I conclude, 
therefore, that this great mass of ore is, in the proper sense of the word, 
a great lode, or a great vein, in the sense in which the word is used by 
miners; and that practically the only way of utilizing this deposit, is to 
treat the whole of it as one great ore-bearing lode or mass of rock.' 

"This conclusion as to the zone constituting one lode of rock, bearing 
metal, it is trvie, is not adopted by the men of science produced fis wit- 



nesses hy llu' dt'lendaiit, tlif Ixicliiiioiul Coiupaiiy. Tlicsc latter iiciitlc- 
iiicii. like tlic others, have liad a larjie exiuTieiice in llic rxaiiiiiiatiuii of 
iiiiiics. and some of them have acijuired a national reputation lor their 
scientific attainments. No one questions their learnin<>; or ability, or the 
sincerity with which they have expressed their convictions. They agree 
with the plaintifT's witnesses as to the existence of the mint^ralized zone of 
limestone with an nndcrlyinsx.qnartzite and an overlyin<i shale; as to the 
broken and crushed condition of the limestone, and s>ihstantially as to 
tlieorisin of the metal and itsdei)osition in the rock. In nearly all other 
respects they disaiiree. In their jndjiment the zone of limestone has no 
features of a lode. It lias no continuous lissure, says Mr. Kin<!:, to mark 
it as a lode. A lode, he adds, must have a foot-wall and a hanfjinsi-wall, 
and if it is broad, these must connect at both ends, and must connect 
downwards. Here there is no hansinji-wall or foot-wall ; the limestone 
only rests as a matter of strati graphical fact on undcrlyiiifi; quartzite and 
the shale overlies it. And distinguishing the structure at Ruby Hill 
from the Comstock Lode, the same witness says that the one is a series 
of sedimentary beds laid down in the ocean and turned u]) : the other is 
a fissure extending between two rocks. 

" The other witnesses of the defendant, so far as they have expressed 
any opinion as to what constitutes a lode, have agreed with the views of 
Mr. King. It is impossible not to perceive that these gentlemen at all 
times carried in their minds the scientific definition of the term as given 
by geologists — that a lode is a fissure in the earth's crust filled with min- 
eral matter — and disregarded the broader, though less scientific, defini- 
tion of the miner, who applies the term to all zones or belts of metal- 
bearing rock Ij'ing within clearly marked boundaries. For the reasons 
already stated, we are of opinion that the acts of Congress use the term 
in the sense in which miners understand it. 

"If the scientific definition of a lode, as given by geologists, could be 
accepted as the only proper one in this case, the theory of distinct veins 
existing in distinct fissures of the limestone, would be not only plausible, 
but reasonable; for that definition is not met by the conditions in which 
the Eureka mineralized zone a])pears. But as that definition cannot be 
accepted, and the zone presents the case of a lode as that term is under- 
stood by miners, the theory of separate veins, as distinct and discon- 
nected bodies of ore, falls to the ground. It is, therefore, of little con- 
sequence what name is given to the bodies of ore in the limestone, 
whether- they be called pipe veins, rake \eins, or pipes of ore. or receive 
the new designation suggested by one of the witnesses, they are but parts 
of one greater deposit, which permeates, in a greater or less degree, with 
occasional intervening spaces of barren rock, the whole mass of limestone, 
from the Jackson mine to the Richmend, inclusive. 

" The acts of Congress of 1866 and 1872 dealt with a practical necessity 
of miners ; they were passed to protect locations on veins or lodes, as 
miners under.stood those terjns, Instances without number exi.st where 



358 

tlie meaning of words in a statute has been enlarged or restricted and 
qualilied to carry out the intention of the Legislature. The inquiry, 
where any uncertainty exists, always is as to what the Legislature in- 
tended, and when that is ascertained it controls. In a recent case before 
the Supreme Court of the United States, singing birds were held not to 
be live animals, within the meaning of a revenue act of Congress. — 
[Riclte vs. Smgthc, 13 Wall., 162.) And in a previous case, arising upon 
the construction of the Oregon Donation Act of Congress, the term, a 
single man, was held to include in its meaning an unmarried woman. — • 
— [Silver vs. Ladd, 7 Wall., 219.) If any one will examine the two deci- 
sions, reported as they are in Wallace's Reports, he will find good rea- 
soils for both of them. 

" Our judgment being that the limestone zone in Euby Hill, in Eu- 
reka District, lying between the quartzite and the shale, constitutes, 
within the meaning of the acts of Congress, one lode of rock bearing 
metal, we proceed to consider the rights conveyed to the parties by their 
respective patents from the United States. All these patents are founded 
upon previous locations, taken up and improved according to the cus- 
toms and rules of miners in the district. Each patent is evidence of a 
perfected right in the patentee to the claim conveyed, the initiatory step 
for the acquisition of which was the original location. If the date of 
such location be stated in the instniment, or appear from the record 
of its entry in the local land office, the patent will take effect by rela- 
tion as of that date, so far as may be necessary to cut off all intervening 
claimants, unless the prior right of the patentee, by virtue of his earlier 
location, has been lost by a failure to contest the claim of the inter- 
vening claimant, as provided in the act of 1872. As in the system estab- 
lished for the alienation of the public lands, the patent is the consum- 
mation of a series of acts, having for their object the acquisition of a 
title, the general rule is to give to it an operation by relation at the date 
of the initiatory step, so far as may be necessary to protect the patentee 
against subsequent claimants to the same property. As was said by the 
Supreme Court in the case of Shcplcy vs. Cowan (1 Otto, 338), where two 
parties are contending for the same property, the first in time, in the 
commencement ol' proceedings for the acquisition of the title, when the 
same are regularly followed up, is deemed to be the first in right. 

"But this principle has been qualified in its application to jiatents of 
mining ground, by provisions in the act of 1872 for the settlement of 
adverse claims before the issue of the patent. Under that act, when one 
is seeking a patent for his mining location and gives proper notice of the 
fact as there prescribed, any other claimant of an unpatented location ob- 
jecting to the patent of the claim, either on account of its extent or 
form, or because of asserted prior location, must come forward with his 
objections and present them, or he will afterwards be precluded from 
objecting to the issue of the patent. While, therefore, the general doc- 
trine of relation applies to mining patents so as to cut off intervening 



359 

claimants, if any there can be, deriving title from other sources, such 
perhaps as might arise from a subsequent location of school warrants 
or a sul)sequent purchase from the State, as in the case of Ilei/dcnfchlt vs. 
Dane}) Gold Jfininf/ Company, reported in the third of Otto, the doctrine 
cannot be applied so as to cut off the rights of the earlier patentee, under 
a later location where no opposition to that locution was made under the 
statute. The silence of the first locator is, under the statute, a waiver 
of his priority. 

" But from the view we take of the rights of the parties under their 
respective patents, and the locations ujK)n which those patents were is- 
sued, the question of priority of location is of no practical consequence in 
the case. 

"The plaintiff is the patentee of several locations on the Ruby Hill 
lode, but for the purpose of this action it is onl\' necessary to refer to 
three of them — the patents for the Champion, the At Last, and the Lu- 
pita or Margaret claims. The first of these patents was issued in 1872, 
the second in 1876, and the third in 1877. Within the end lines of the 
locations, as patented in all these cases, when drawn down vertically 
through the lode, the property in controversy falls. Objection is taken 
to the validity of the last two patents, because the end lines of the sur- 
face locations patented are not parallel, as required by the act of 1872. 
But to this objection there are several obvious answers. In the first 
place, it does not appear upon what locations the patents were issued. 
The3^ may have been, and probably were, issued upon locations made 
under the act of 1866, where such parallelism in the end lines of the 
surface locations was not required. The presumption of the law is, that 
the officers of the Executive Department, specially charged with the su- 
pervision of applications for mining patents, and the issue of such patents, 
did their duty ; and in an action of ejectment, mere surmises to the con- 
trary will not be listened to. If, under any possible circumstances, a 
patent for a location without such parallelism may be valid, the law will 
presume that such circumstances existed. A patent of the United States 
for land, whether agricultural or mineral, is something upon which its 
holder can rely for peace and security in his possessions. In its potency 
it is ironclad against all mere speculative inferences. In the second place, 
the provision of the statute of 1872, requiring the lines of each claim to 
be parallel to each other, is merely director\% and no consequence is at- 
tached to a deviation from its direction. Its object is to secure parallel 
end lines drawn vertically down, and that was effected in these cases by 
taking the extreme points of the respective locations on the length of the 
lode. In the third place, the defect alleged does not concern the defend- 
ant, and no one but the government has the right to complain." 

The Judge then proceeded to >:;iy that botli the defend- 
ant and the plaintilf, by virtue of tlieir respectiv'e patents^ 
whether issued upon locations under the act of 1866, or 



360 

undei- the act of 1872, were limited to veins or lodes lying 
Avithin planes drawn vertically downward through the end 
lines of their respective locations, and that each took the 
ores found within those planes, at any depth in all veins 
or lodes, the apex or top of which lay within the surface 
lines of its locations; that the question of priority of loca- 
tion was of no practical importance in the case; that this 
question hecame important only where the lines of one 
patent overlapped the other; thaf here neither plaintitl' 
nor defendant conld pass outside of the end lines of its 
own location, whether they were made hefore or after 
those U[)on which the other [)arty relied; and as the ground 
in dispute lay within planes drawn vertically downward 
through the end lini'sol'the pi aintitf's location, the conclu- 
sion was that tlie gi'ound was the property of the plaintitl'. 
Judgnjent was accordingly ordered in its favor. The same 
conclusion was reached by the Court upon the agreement 
of the parties of the 16th of June, 1878. 

Judgment being entered for the plaintitl", an appeal was 
taken to the Supreme Court of the United States, and the 
judgment was there affirmed, the Court placing its decision 
upon the agreement of the parties. This agreement, how- 
ever, could not have settled tlie controversy, unless the 
lines drawn on the surface mentioned in the agreement, 
cut through the whole extent of the mining property — that 
is, unless that property was a part of a lode as defined in 
the opinion of the Circuit Court. All lines dividing claims 
upon veins or lodes, must necessarily divide all that the 
location on the surface carries, and w^ould not serve as a 
boundary between them, if such were not the case.^ — (13 
Otto.) 

The Pueblo Case. 

In a preceding case the existence of a Mexican pxchlo, 
or town, at the site of the present city of San Francisco- 
its claim to the use of four square leagues of land — the 
power of the Mexican x\lcaldes to distribute these lands 



8H1 

in small [larcoKs to the inhabitants of the town for hnild- 
ing', cultivation, atul other uses, and the exercise of a sini- 
iliar power by the Alcaldes appointed hy our military and 
naval commanders after the conquest of the ciountry — have 
been stated. — See p. 322. 

As the Supreme Court of the United States said in Tre- 
nouth vs. San Francisco: " Upon the sudden increase of 
population at that place, following the discovery of gold, 
the Alcaldes were called upon for building-lots in great 
numbers, and those officers distributed them witli a gen- 
erous liberality" usually attending the grant of other peo- 
ple's property. Numerous persons, however, arriving at 
the town were not disposed to recognize the authority in 
this respect of the American magistrates, and finding it 
less troublesome to appropriate what land they needed 
than to apply to the magistrates for it, they asserted that 
the land on which the pueblo was situated belonged to the 
United States, and, as evidence of the sincerity of their 
convictions, immediately proceeded to take as much of it 
for themselves as they could conveniently enclose and hold. 
Thus the town was soon filled wnth an active and restless 
population, making large and expensive improvements 
upon lands held in some instances under grants from the 
Alcaldes, and in others by the right of prior possession. 
Sometimes the same parcel was claimed by different par- 
ties; by one party as a settler, and by another as the 
holder of an Alcalde grant. Disputes both in and out of 
the Courts, the natural consequence of this difference in 
the origin of the titles of the claimants, were greatly in- 
creased in bitterness by the enormous value which in a 
short period the lands acquired." — (10 Otto, 251.) 

After Cahfornia was organized as a State, San Fran- 
cisco w^as incorporated as a city hy its Legislature, and 
municipal officers w^ere elected to administer its govern- 
ment. As has happened in many other cases, the city con- 
tracted more debts than its revenues authorized, and did 
not always make suitable provision to meet its obligations 



362 

as tliey niiitured, Xuinerous suitw were consequently 
instituted ag-ainst it and judgments recovered. Execu- 
tions were issued upon tliese judgments and levied upon 
the land claimed by the city. Those wlio denied that the 
city possessed any title to the property, of course paid no 
attention to the sales; and property of immense value, 
covering in some instances hundreds of acres, was in 
consequence struck off at a mere nominal price. What 
tended to add t(^ the confusion of titles was the dilferent 
opinions entertained respecting them by the Supreme 
Court of the State at ditierent times. tIic first bench of 
judges of the Court decided that San Francisco never was 
a pueblo, had no [)roprietary rights, and that the grants 
made by the Alcaldes appointed by the American oificers 
after the conquest, conveyed no tith^ The successors of 
these judges decided just the reveise, and held that San 
Francisco was a pueblo, that it had proprietary rights to 
four square leagues, and that the change of flags worked 
no change in those I'ights or the power of her officers to 
make grants of the land. In the mean time the action of 
the city authorities increased this confusion. Asserting 
that there originally was a Mexican pueblo, and that the 
city of San Francisco had succeeded to its [)roprietary 
rights, she made a claim to the lands of the pueblo, 
as its successor, and when the Board of Land Com- 
missionei-s was created by the act of Congress of March 
3d, 1851, she presented the claim for confirmation. In 
December, 1854, the Board confirmed this claim for a por- 
tion of the foursquare leagues. Dissatisfied with the limi- 
tation of the claim, the city appealed from the decree of the 
Board to the District Court of the United States, where 
the case remained undecided until September, 1864 — a 
period of nearly ten years. Pending this appeal, the city 
passed an ordinance, known in her history — from the name 
of its author — as the " Van Ness Ordinance," the object of 
which, as expressed in the title, was " lor the settlement 
and quieting of the land titles in the city of San Fran- 



aH3 

CISCO." it relii!qui^5lKMl and ii'mnte'd all llic i'ii;'lit and 
claim of the city to land within the corporate limits, as de- 
fined hy tlie charter oi" 1851 — with certain exceptions — to 
parties in the actnal })ossession thereoi". hj themselves or 
tenants, on or before the first of .lanuary, 1855, providcnl 
such pO!?session was continued up to the time of the intro- 
duction (.)f the ordinance into the Common Council, or 
if interru[)ted hy an intruder or trcspassc-r, had heeii or 
might he recovered hy legal process. And it declared 
that for all the purposes contem[)lated hy the ordinance, 
persons should he deemed [»ossessors, who lield titles to 
lands within those limits hy virtue of a grant nuide by any 
ayuntannento, town council, alcalde, cu' justice of the peace 
of the former pueblo, before the 7th of July, 184*:!, or by 
virtue of a grant subsequently made by those authorities, 
within certain limits of the city, previous to its incorpora- 
tion by the State, provided the grant or a material portion 
of it had been recorded in a pi'oper bo(dv of records in the 
control of the recorder of the county previous to April 3d, 
1851. In March, 1858, the Legislature ratified and con- 
firnied this ordinance. Its framers, however, being in 
doubt whether the city had any title to the lands claimed 
by her as successor of the Mexican pueblo, provided for 
tlie ultimate determination of the question either way ; and 
directed, on the assumption that the land was public land, 
that an entry of it be made at the proper land othce of the 
United States, and declared that whatever title might be 
acquired, either on a confirmation of the pueblo claim, or 
through the action of the land officers, should inure to the 
benefit of parties in possession, within the meaning of the 
ordinance. 

As was to be expected, large numbers of suits were 
brouglit in the Courts, by the holders of the conflicting 
titles, to test their validity. These suits were carried to 
the Supreme Court of the State, where various decisions 
were rendered, not always consistent with each other, nor 
always meeting the entire approval of the profession, but 



364 

generally holding tliat a Mexican pueblo, with an interest 
of some sort in the lands, had existed at the site of the 
citj on the acquisition of the country, and that such lands, 
like other property of the city not used for public pur- 
poses, were vendible on execution. Finally a test case — 
Hart vs. Burnett — presenting the dilferent titles for adju- 
dication, found its way to that Court. It was there elabo- 
rately argued by able and learned counsel, and the whole 
law of Mexico upon the subject of pueblos, their organi- 
zation, rights, and powers, the nature of their pi'oprietary 
rights, the etfect of the change of sovereignty, the powers 
of alcaldes in the disposition of municipal lands, and the 
etfect of the Van Xess Ordinance, and the contirmatory 
act of the Legislature, w^ere thoroughly and fully pre- 
sented. The magnitude of the interests involved, the pre- 
vious uncertainty in relation to the law, and the character 
and erudition of the counsel employed, attracted vei-y 
general attentit)n to the case. 

In April, 186U, the ()pini()n of the Court, prepared l)y 
Judge Baldwin and concurred in by Judge Field, was de- 
livered. That opinion is remarkable f )r the exhaustive 
learning and research it exliibits upon the points dis- 
cussed. The law was established with such precision and 
clearness that its doctrines have never since been success- 
fully assailed; on the contrary, they have been repeatedly 
reaffirmed by the Supreme Court of the State and often 
recognized as sound by the Supreme Court of the United 
States. The Court lield, among other things, that at the 
date of the conquest and cession of the country, San 
Francisco was a pueblo; that, as such, it had proprietary 
rights in certain lands which were held in trust for the 
public usee of the city and for its inhabitants, and were not 
subject to seizure and sale under execution; that such por- 
tions as were not set apart for public uses could be granted 
in lots to its inhabitants by its ayuntamiento, or alcaldes, 
or other officers succeeding to their powers; that the trusts 
upon which these lands were held were public and politi- 



365 

cal ill their nature, and as such had been, since the organi- 
zation of the State, under the control of the Legislature; 
that the Van Ness Ordinance and the confirmatory act of 
the Legislature vested in the persons therein descrihed a 
title to the lands mentioned, and that the city lield the 
lands, not already disposed of by herself, unatfected hy 
sheriff sales under executions against her. 

By this decision the title of the city to her puhlic squai-es, 
streets, sites for school-houses, city hall, engine-houses, and 
other puhlic huildings belonging to the corporation, and 
other lots reserved by the ordinance for public uses, was 
confirmed and established; and all persons occupying lands, 
not thus reserved, were quieted in their possessions, so far 
as any claim of the city or State was concerned. Prop- 
erty of vast value, to be estimated only by millions, was 
tlms secured to tlie city or to persons in possession. 

Li order to a complete settlement of the title, however, 
it was still necessary to obtain the action of the tribunals 
of the United States u^xni the claim made by the city as 
successor of tlie pueblo. As already stated, the appeal to 
the District Court from the decision of the Conmiissioners 
had not been acted u[>on. 

Bv the 5th section of the act of Congress, entitled "An 
act to expedite the settlement of titles to lands in the 
State of Cahfornia," passed July 1, 1864, all the right 
and title of the United States to land within the corpo- 
rate limits of San Francisco — as defined by its charter of 
1851, with certain exceptions — were relinquished and 
granted to the city and its successors for the • uses and 
purposes specified in the Van Xess Ordinance.* Thus, 
whatever was essential to perfect the title to parties 
holding under that ordinance, and to the city, was com- 
pleted. That section was drawn by Judge Field. The 
exceptions enumerated related to lands previously or then 
occu[)ied by the United States for military, naval, and 
other pui'poses, or such parcels as might be subsequently 



13 Stats, at Large, 333.. 



366 

designated for that purpose by the President within a year 
after the return to the Land Otfice of an approved plat of 
the city limits. But the claim of the city — as successor 
of the pueblo — was for a much greater quantity than the 
land embraced within the charter limits of 1851, and, by 
the 4th section of the act mentioned, authority was given 
to traiisfei- the case pending in the ])istrict Court to the 
Circuit Court of the TTnited States. The case was accord- 
ingly transferred in September, 1864, and it was decidefl 
in October of that yeai-. 

In deciding the case Judge Field gave the following 
opinion : 

" This case comes before this Court upon a transfer from the District 
Court under the act of Congress of July 1st, 1864, 'to expedite the set- 
tlement of titles to lands in the State of California.' It was in the Dis- 
trict Court on appeal from the decree of the Board of Land Commis- 
sioners, created by the act of March 3d, 1851. It involves the consider- 
ation of the validity of the claim asserted by the city of San Francisco 
to a tract of land situated in the county of San Francisco, and embracing 
so much of the peninsula, upon which the city is located, as will contain 
an area of four square leagues. 

" The city presented her petition to the Board of Laud Commissioners 
in July, 1852, asserting in substance, among other things, that, in pur- 
suance of the laws, usages, and customs of the government of Mexico, 
and the act of the Departmental Assembly of California of November, 
1833, the Pueblo of San Francisco was created a municipal government, 
and became invested with all the rights, properties, and privileges of pu- 
eblos under the then existing laws, and with the proprietorship of the 
tract of land of four square leagues above described ; that the pueblo 
continued such municipality and proprietor until after the accession of 
the government of the United States, July 7th, 1846, and until the pas- 
sage of the act of the Legislature of the State of California incorporating 
the city ; and that she thereupon succeeded to the property of the pueblo, 
and has a good and lawful claim to the same. 

" In December, 1854, the Board of Commissioners confirmed the claim 
of the city to a portion of the four squai-e leagues, and rejected the claim 
for the residue. The land to which the claim was confirmed was bounded 
by a line running near the Mission of Dolores, and known as the Vallejo 
Line. That line was adopted principally in reliance upon the genuine- 
ness and authenticity of the document described in the proceedings as 
the Zamorano document. The si)uriousness of that document is now- 
admitted by all parties. From the decree of the Board an appeal was 
taken by the filing of a transcript of the proceedings and decision with 



8r.T 

the clerk ol' ihe Distiiet Court. 'I'lii' apixal wiis liy statute Cor \hv l)en(- 
lit of tlie party against whom the decision was rendered- in tliis ease of 
both parties— of the United States, which controverted the entir.' claim, 
and of the city, which asserted a claim to a larger quantity of land— and 
both parties gave notice of their intention to prosecute the appeal. Af- 
terwards, in February, 1857, the Attorney-General withdrew the appeal 
on the part of the United States, and in March following, upon the stip- 
ulation ef the District Attorney, the District Court ordered that appeal 
to be dismissed, and gave leave to the city to proceed upon the decree of 
the Commission as upon a final decree. The case, therefore, remained in 
the District Court upon the appeal of the city alone, and that is its posi- 
tion here. But the proceeding in the District Court, being in the nature 
of an original suit, the prosecution of the appeal by either party keeps 
the whole issue open. ' The suit in the District Court,' said Mr. Justice 
Nelson in United States vs. Ritchie (17 How., 534), 'is to be regarded as 
an original proceeding — the removal of the transcript, papers, and evi- 
dence into it from the Board of Commissioners being but a mode of pro- 
viding for the institution of the suit in that Court. The transfer, it is 
true, is called an appeal ; we must not, however, be misled by a name, 
but look to the substance and intent of the proceeding. The District 
Court is not confined to a mere re-examination of the case as heard and 
decided by the Board of Commissioners, but hears the case de novo, upon 
the papers and testimony which had been used before the Board, they be- 
ing made evidence in the District Court; and also upon such further evi- 
dence as either party may see fit to produce.' 

" But though the whole issue is thus open, the dismissal of the appeal 
on the part of the United States may very properly be regarded as an as- 
sent by the government to the main facts upon which the claim of the 
city rests, namely : the existence of an organized pueblo at the site of the 
present city upon the acquisition of the country by the United States on 
the 7th of July, 1846; the possession by that pueblo of proprietary rights 
in certain lands, and the succession to such proprietary rights by the city 
of San Francisco. The District Attorney does not, therefore, deem it 
within the line of his duty to controvert these positions, but on the con- 
trary admits them as facts in the case, contending only that the lauds 
appertaining to the pueblo were subject, until by grant from the proper 
authorities they were vested in private proprietorship, to appropriation 
to public uses by the Ibrmer government and, since the acquisition 
of the country, by the United States. He, therefore, insists upon an 
exception from the confirmation to the city of the land heretofore re- 
served or occupied by the government for public uses ; and I do not un- 
derstand that the counsel of the city objects to an exception of this 
character. 

" It is unnecessary, theretbre, to recite the historical evidence of the 
existence of a pueblo previous to, and at the date of, the acquisition of 
the country at the present site of the city of San Francisco, which is very 



368 

fully presented in the elaborate opinion tiled by the Commission on the 
rendition of its decision. Since that decision was made the question has 
been considered by the Supreme Court of the State ; and in an opinion 
in which the whole subject is examined a similar conclusion is reached ; 
and if anything were wanting in addition to the" arguments thus fur- 
nished, it is found in the able and exhaustive brief of the counsel of the 
city. The documents of undoubted authenticity, to which the opinions 
and the brief of counsel refer, establish beyond controversy the fact that a 
pueblo of some kind, having an Ayuntamiento composed of Alcaldes, 
Regidores, and other municipal officers, existed as early as 1834; and 
that the pueblo continued in existence until, and subsequent to, the ces- 
sion of the country. The action of the officers of the United States in the 
government of the city and the appointment or election of its magistrates 
after the conquest, both preceding and subsequent to the treaty of peace, 
proceeded upon the recognition of this fact ; and the titles to property 
within the limits of the present city to the value of many millions rest 
upon a like recognition. 

" The material question, therefore, for determination, as the case stands 
betbre this Court, relates to the extent of the lands in which the pueblo 
was interested. It is not pretended that such lands were ever marked 
off and surveyed by competent authority. It is admitted, as already 
stated, that the so-called Zamorano document, given in evidence, is spuri- 
ous. The question presented must, therefore, be determined by reference 
to the laws of Mexico at the date of the conquest. 

" As stated by the Commissioners in their opinion, there can be no 
doubt that by those laws, pueblos or towns, and tlieir residents, were en- 
titled to the use and enjoyment of certain lands within the prescribed 
limits immediately contiguous to and adjoining the town proper ; that 
this right was common to the cities and towns of Spain from their tirst 
organization, and was incorporated by her colonies into their municipal 
systetu on this continent ; and that the same continued in Mexico, with 
but little variation, after her separation from the mother country. And 
there is as little doubt that by those laws a pueblo or town, when once 
established and officially recognized, became entitled, for its own use and 
the use of its inhabitants, to four square leagues of land. The compila- 
tion known as the Beeopilacion de Leyes de las Indias contains several laws 
relating to this subject. The Sixth Law of Title Five, of Book Four, pro- 
vides lor the establishment of towns by contract with individuals, and 
upon compliance with the conditions of the contract, for the grant of four 
•square leagues of land, to be laid off in a s(|niij-e or prolonged form, ac- 
cording to the character of the country. 

" The opinioij of the Assessor or legal adviser of the Vice Royalty of 
New Spain given to theCommandante General in October. 1 785. upon the 
petition of certain settlers in Caliibrnia, for grants of tracts of land situ- 
ated within the limits claimed by pueblos, recognizes this right of pueb- 
los to have four square leagues as.signed to them. His language is that 



the grants 


' (•ann( 


)t nor 


oll-ht to 


assigni'd t' 


(. each 


puH 


)1<), whicli 


Five, LilK'v 


• Four 


ol'lhc 


K'ccopila 



itliin the 


lionnd: 


ii'ics 


h the I,a' 


u Six, '1 


;itU! 


hiKJIK^ rij 


r iitiid I 


in 11 



H(_i^» 



made to then 
I conforniily \ 
n, niiist- he J\ 

square or oblong body, according to the nature of tlie gromid ; l)ecausc 
the petition of the new settlers woukl tend to make them private owners 
of the forests, pastures, Avater, timber, wood, and other advantages of the 
lands which may be assigned, granted, and distributed to them, and to 
deprive their neighbors of these benclits. It is seen at once that their 
claim is entirely contrary' to the directions of tlie forcinentioned laws, 
and the express provision in Art. 8 of the Instructions lor Settlements 
(Poblaciones) in the Californias, according to wliieli all the waters, past- 
ures, wood, and timber, within the limits which in eoulbrniily to law 
may be allowed to each pueblo, must be for the common advantage — so 
that all the new settlers may enjoy and partake of them, maintaining 
thereon their cattle, and participating of the other benefits that may be 
Ijroduced.' 

" But the royal instructions of November, 1789, for the establishment 
of the town of Pitic, in the province of Sonora, is conclusive as to the 
right of pueblos in California under the laws of Spain. 

" The instructions were made applicable to all new towns that should 
be subsequently established within the general comandancia, which in- 
cluded the province of California. They gave minute directions for the 
formation and government of the new jiueblos, and referring to the laws 
of the Indies already cited, declared that there should be granted to tlie 
towns four leagues of land in a square or prolonged form. They also pro- 
vided lor the distribution of building and farming lots to settlers, the 
laying out of pasture lands and lands for ihc propios, the residue to con- 
stitute the egidos or commons for the u.se of the inhabitants. 

" The general provisions of the laws of the Indies, to which these in- 
structions and the opinion of the Assessor refer, continued in force in 
Mexico after her separation from Spain. They were recognized in the 
regulations of November, 1828, which were adopted to carry into effect 
the Colonization Law of 1824, and in the regulation of the Departmental 
Assembly of August, 1834, providing funds for towns and cities. They 
were referred to in numerous documents in the archives of the former 
government in the custody of the Surveyor-General. The report of 
Jimeno, for many years Secretary of the Govei-nment of California, Ibund 
in the expediente of Doiaa Castro made in February, 1844, is cited by the 
Commissioners in their opinion as removing all doubt on this point. The 
report is as follows : 

" ' Most Excellent Goverxoe. — Tlie title given to Doiia Castro is 
drawn, subject to the conditions that were inserted in many other titles 
during the time of Gen. Figueroa, in which they subjected the parties to 
pay census (taxes) if the land proved to belong to the etjidos of the town. 

" ' I understand that the town of Brancitbrte is to have for egidos of its 
population four square leagues, in conformity to the existing law of the 



.:]7o 

Kecopilufioi) of the India's, in volume tliesecoiul. folios 88 to 149. in whicli 
it mentions that to the new towns that extent may be marked, to whieh 
effect it would be convenient that your Excellency should commission 
two persons deserving your confidence, in order that accompanied by the 
Judge of the Town, the measurement indicated utay be made, and it may 
be declared for cgidos? of the town the four square leagues, leaving to the 
deliberation of your Excellency to free some of the grantees of the con- 
ditions to which they are subject. The supreme judgment of your Ex- 
cellency may resolve as it m{\y deem it convenient. 

"' Monterey, FeftrMflo-T/ 8f7i, 1844. Manuel Jimeno.' 

" The documeuts to which reference has been made are sufficient to 
establish the position that pueblos once formed and officially recognized 
as such, became by operation of the general laws entitled to have four 
square leagues of land assigned to them, for their irse and the use of their 
inhabitants. It does not appear that formal grants were made to the new 
pueblos, thougli in some instances an officer was appointed to mark off 
the boundaries of the four square leagues, and to designate the uses to 
which particular tracts should be applied. But the right of the pueblos 
and their inhabitants to the use and enjoyment of the lands was not made 
dependent upon such measurement and designation. 

" It tbllows from these views that the pueblo, which is admitted to 
have been regularly established at the site of San Francisco, on the sev- 
enth of July, 1846, was, as such pueblo, vested with the right to four 
square leagues of land, to be measured either in a square or prolonged 
form, according to the nature of the countrj', excepting from such tract 
such portions as had been previously dedicated to or reserved for public 
uses, or had become private property by grant from lawful authority. 

" It is difficult to determine with precision the exact character of tlie 
right or title held by pueblos to the lands assigned to them. The govern- 
ment undoubtedly retained a right to control their use and disposition, 
and to appropriate them to ]mblic uses until they had been vested in 
jmvate proprietorship. Numerous laws have been cited to show that the 
title remained absolutely in the government. The same laws were cited 
to the Supreme Court of this State when the subject was before that tri- 
bunal, and in relation to them the Court said: ' We see nothing in these 
laws opposed to the views we have already expressed, that the towns had 
such a right, title, and interest in these lands as to enable them to use and 
dispose of them in the manner authorized by law or by special orders, and 
consonant with the object of the endowment and trust. Undoubtedly 
the right of control remained in the sovereign, Avho might authorize or 
forbid any municipal or other officer to grant or dispose of such lands, 
even for the purpose of the endowment or trust. Such general right, 
with respect to a public corporation, exists in any sovereign State, and 
must, of ccmrse, have existed in the absolute monarchy of Spain, where 
the property of private corporations and individuals was to a great de- 
gree subject to the royal will and ))leasurc.' — \H<ir1 vs. Bm-nr/l, ITi Cn]., 



871 

r>()i).) Ami rcrcvriiiL!: to o])jo('ti()ns to the llioory of iibsoliitc tillo in tlic 
pneblo, and the cxuestions which upon that view might be suggested, the 
Court said : ' There is but one sensible answer to these questions, and we 
think that answer is given in the laws themselves, and in the recorded 
proceedings of the officers who administered them, and who must be pre- 
sumed to have interpreted them correctly. It is, that the. lauds assigned 
to pueblos, whether by general law regulating their limits to four leagues, 
or by special designation of boundaries, were not given to them in abso- 
Inte property, with full right of disposition and alienation, but to be held 
by them in trust for the benefit of the entire community, with such 
powers of use, disposition, and alienation, as had been already or might 
afterwards be conferred for the due execution of such trusts, upon such 
pueblos, or upon their officers.' — {Id., 573.) And this view, the Court 
adds, fully reconciles the apparently conflicting disposition of the laws 
and the commentaries of publicists respecting the relative rights of the 
Crown and the municipalities to which counsel had referred. 

" In this view of the nature of the title of the pueblo and of the city, 
its successor, I fully concur; and I am of opinion that under the provi- 
sions of the act of March 3d, 1851, the city is entitled to a confirmation 
of her claim. I regret that the recent transfer of the case to the Circuit 
Court, and the great pressure of other engagements since, have prevented 
me from considering at greater length the interesting questions presented. 
To those who desire to extend their inquiries, the elaborate opinions to 
Avhich I have made frequent reference, and the able brief of counsel will 
furnish ample materials. 

" A decree will be entered confirming the claim of the City of San 
Francisco to a tract of laud, situated in the county of San Francisco, and 
embracing so much of the peninsula upon which the city is located as 
will contain an area equal to four square leagues, as described in the pe- 
tition. From the confirmation will be excepted such parcels of land 
within said tract as have been heretofore reserved or dedicated to public 
use by the United States, or have been by grant from lawful authority 
vested in private proprietorship. The confirmation will be in trust for 
the benefit of lot-holders under grants from the pueblo, town, or city ; 
and as to any residue, in trust for the use and benefit of all the inhab- 
itants. A decree will be prepared by counsel in conformity with this 
opinion and submitted to the Court."* — (4 Sawyer, 559-67.) 

*The following extract is from the opinion of the Supreme Court of the State, in 
Hart vs. Burnett, reported in 15 California Reports : 

"On the third of November, 1834, the Territorial Deputation authorized the election 
of an Ayuntamiento, to re.side at the Presidio of San Francisco, to be composed of 
an Alcalde, two Regidores or Councilmen, and a Sindico-Procurator. This Ayunta- 
miento, when organized, was to exercise the political functions pertaining to such 
office, and the Alcalde was also to perform the judicial functions which the laws- con- 
ferred upon him. This decree was communicated to the Military Commandant by 
the (iovernor, on the fourth of November, 1834. An election was accordingly held 
on the seventh of December, 1834, at the Presidio of San Francisco, and the Ayunta- 

25 



372 

A motion for ii rcliearing liaving been afterwards made, 
the decree entered was modified, and as final]}^ settled 
was not entei-ed until the 18th of May of the following- 
year, 1865. By it the claim of the city, subject to certain 
reservations, was confirmed to the extent of four square 
leagues embracing the northern portion of the peninsula, 
upon which the city is situated, above ordinary high-water 
mark in 1846, and bounded on the north and east by the 
Bay of San Francisco; on the west by the Ocean, and on 
the south by a due east and west line so as to include the 
area designated. The title, so confirmed, was declared to 
be in trust for the benefit of lot-holders nnder grants 
from the pueblo, town, city, or other competent authority, 
and as to any residue, in trust for the use and benefit of 
the inhabitants of tbe city. From this decree appeals 
were taken to the Supreme Court, both by the city and 
the United States; by the latter from the whole decree, 
and by the former from so much as included the reserva- 
tions in the estimate of the quantity of land confirmed. 
This appeal, in tlie ordinary course of the business of the 
Supreme Court, would not have been reached for two or 



miento duly installed. A similar election was held on the thtrteenth of December 
of the following year (1835), at the same place, which was then officialh' designated 
as the Pueblo of San Francisco. Other elections of the same character were subse- 
quently held; and there are numerous official documents, of undisputed authen- 
ticity, which refer to the 'Ayuntamiento of San Francisco,' the 'Alcalde of San Fran- 
cisco,' and to the 'Pueblo of San Francisco,' proving, as we think, beyond a doubt, 
that there was at that place, in 1834, 1835, 1836, and subsequently, a pueblo of some 
kind, with an Ayuntamiento composed of Alcaldes, Regidores, and other municipal 
officers. What were the rights of this municipality, and what the powers of its offi- 
cers, and the extent of its territory and jurisdiction, we shall not now inquire. We 
here refer merely to the fact of the existence, at that time and at that place, of such 
an organization, whether corporate or incorporate. And that fact is proved by the 
official returns of elections, by the official acts of the Governor and of the Territorial 
or Departmental Legislature, by the official correspondence of government officers, 
and by the acts, proceedings, records, and correspondence of the officers of the 
pueblo itself. As a part of the evidence of this fact, we refer to the election returns 
of December 7th, 1834, December 13th, 1835, December 3d, 1837, and December 8th, 
1838; to the Governor's letters of January 31st, 1835, October 26th, 1835, January 19th, 
1836, January 17th, 1839, and November 14th, 1843 ; to the expediente of proceedings 
between May and November, 1835, with respect to certain persons obliged to serve as 
municipal officers of that pueblo ; and to the official correspondence between, the 
Alcaldes of that pueblo and the various offipers of the Territorial or Pepartmental 
Government of California." — (15 Cal., 540.) 



tliroo yo;i rs; and inasimicli as the dccrtH' ol' the Cii'cuit 
Court was found to i;"ive veiy ,ii;Gueral satisfaction, and a 
desire was freely ex[)i-esscd that a tinal end of this litiija- 
tion he arrived at on the l>asis ol' lliat (U'cree, Jud^'e Fiehl 
prepared a hill, which was introduced and passed h^^ the 
united assistance of the whole delegation in Congress 
from California and Xevada, quieting the title of the city 
to all lands emhraced within the decree of contirniation. 
This act of Congress hecanie a law on the 8th of March, 
18()<;. By it all the right and title of the United States 
to the land embraced in the decree of the Circuit Court 
were relinquished and granted to the city, and its claim 
to the land was contirmed, suhject to certain exceptions 
and reservations, and upon trust that all the lands not 
previously granted by tlie city, should be disposed of and 
conveyed by it to the parties in the bona-fide actual pos- 
session thereof, by themselves or tenants, on the pass- 
age of the act, in such quantities and upon such terms 
and conditions as the Legislature of the State might pre- 
scribe, except such parcels as might be reserved and set 
apart by ordinance of the city foi" pul)lic uses. Shortly 
afterwards the appeals to the Supreme Court were dis- 
missed by stipulation of the parties, and the Htigation over 
the source of title to tlie lands witliin the city was thus 
settled and closed. As has been adjudged by the Su- 
preme Court of the United States, the title to the lands 
within the four square leagues rests upon the decree of 
the Circuit Court, and this confirmatory act of Congress. 
In several cases in the Circuit Court and in the Supreme 
Court of the United States, in which the opinions were 
delivered by Judge Field, the positions settled by this de- 
cision, viz., the existence of a pueblo at the site of the city 
of San Francisco at the time the country was acquired b}^ 
the United States; the possession by it of certain proprie- 
tary rights to land, and the succession to them of the 
present city, are either impliedly recognized or directly 
asserted. The followins; are the cases in the Circuit Court: 



^74 

Grisar vs. McDowell (4 Sawyer, 599); United States vs. 
Hare (Ibid., 653); United States vs. Carr (3 Ibid., 481); 
and Tripp vs. Spring (5 Ibid., 219). The following are 
the cases in the Supreme Court : Townsend vs. Greely 
(5 Wall., 326 ); Grisar vs. McDowell (6 Ibid., 363 ); and 
Trenouth vs. San Francisco (10 Otto, 251). 

The fifth section of the act of July 1, 1864, " to expedite 
the settlement of titles to lands in the State of California," 
mentioned above, is as follows : 

" Sec. 5. And be it further enacted, That all the right and title of the 
United States to the lands within the corporate limits of the City of San 
Francisco, as defined in the act incorporating said city, passed by the 
Legislature of the State of California on the fifteenth of April, one thou- 
sand eight hundred and fifty one, are hereby relinquished and granted 
to the said city and its successors, for the uses and purposes specified in 
the ordinance of said city, ratified by an act of the Legislature of the said 
State, approved on the eleventh of March, eighteen hundred and fifty- 
eight, entitled ' An act concerning the City of San Francisco, and to ratify 
and confirm certain ordinances of the common council of said city,' there 
being excepted from this relinquishment and grant all sites or other par- 
cels of lands which have been, or now are, occupied by the United States 
for military, or other public uses, [or such other sites or parcels as may 
hereafter be designated by the President of the United States, within one 
year after the rendition to the General Land Ofliee, by the Surveyor- 
General, of an approved plat of the exterior limits of San Francis^, as 
recognized in this section, in connection with the lines of the public sur- 
veys : And provided, That the relinquishment and grant by this act shall 
in no manner intefere with or prejudice any bona-fide claims of others, 
whether asserted adversely under rights derived from Spain, Mexico, or 
the laws of the United States, nor preclude a judicial examination and ad- 
justment thereof"] — (13 Stats, at Large, 333.) 

The part included within brackets was inserted at the 
request of the Commissioner of the General Land Office. 
No map, such as is there mentioned, was ever sent to the 
General Land Office. The only map made was of the 
land subsequently confirmed to the city. Nor were any 
reservations ever made by the War Department. 

This section was, as stated above, drawn by Judge Field, 
but the honor of securing its passage, with the rest of the 
act, is due to Senator Conness, 



375 

The act of Maivli 8tli, 1S(;n, ontitlod "An act to (juict 
the title to certain lands within thr corpoi-atc limits ol'the 
cit}' of iSan Francisco/' is as follows: 

"Be it enacted by the Senate and House of Eepremitativen of the Vnited 
States of America in Congress assemhkd, That all the right and title 
of the United States to the land situated within the corporate limits 
ol" the city of San Francisco, in the State of California, confirmed to the 
city of San Francisco by the decree of the Circuit Court of the United 
States for the Northern District of California, entered on the eighteenth 
day of May, one thousand eight hundred and sixty-five, be, and the same 
are hereby, relinquished and granted to tlie said city of San Francisco 
and its successors, and the claim of the said city to said land is hereby 
conlirmed, subject, however, to the reservations and exceptions designated 
in said decree, and upon the following trusts, namely : that all the said 
land, not heretofore granted to said city, shall be disposed of and con- 
veyed by said city to parties in the bona fide actual possession thereof, 
by themselves or tenants, on the passage of this act, in such quantities 
and upon such terms and conditions as the Legislature of the State of 
California may prescribe, except such parcels thereof as may be reserved 
and set apart by ordinance of said vitj for public uses : Provided, how- 
ever, That the relinquishment and grant by this act shall not interfere 
Avith or' prejudice any valid adverse right or claim, if such exist, to said 
land or any part thereof, whether derived from Spain, Mexico, or the 
United States, or preclude a judicial examination and adjustment thereof. 
— (14 Stat, at Large, 4.)" 

The bill for this act was, as stated above, also drawn by 
Judge Field. He gave it to Senator Conness, who took 
charge of it in the Senate, and through his iniiuence it 
was passed bj' that body. In the House, Mr. McRuer took 
charge of it, and, with the aid of tlie rest of the State del- 
egation, and of the delegation from K'evada, its passage 
there w^as secured. 

The appeals to the Supreme Court of the United States 
from the decree in the Pueblo Case being dismissed after 
the passage of this act, as stated above, the municipal au- 
thorities proceeded, under its provisions, to set apart lands 
for school-houses, hospitals, court-house buildings, and 
other public purposes, and, through their exertions, second- 
ed and encouraged by Mr. McCoppin, the very able and effi- 
cient Mayor of the city at that time, a park was laid out 



376 

upon the Ocean and the Golden Gate, which is known as 
the Ocean Park, and which, in time, will be one of the finest 
parks in the world. But inasmuch as, in many cases, 
the ground taken for public purposes and for the park, 
was occupied by settlers or had been purchased by them, 
an assessment was levied by the city, with the approval 
of the Legislature, upon other lands conveyed to the 
occupants, as a condition of their receiving the deeds of 
the city, and tlfe moneys obtained in this way were applied 
to compensate those whose lands had been thus ap[»ro- 
priated. 



The Chinese in California, and the Legislation of the 
State and of the City of 8an Francisco against 
them. 

The pi'esence of Chinese in CaHturnia, and the constant 
immigi'ation of them into the State, has created a great 
deal of irritation with its inhabitants of other races, and 
has led, not only to much inflammatory declamation, but 
to legislation — State and municipal — in conflict with the 
Constitution of the United States, and which, if it should 
be carried out, would involve the destruction of the most 
important powers of the General Governuient, 

The Constitution vests in Congress the power to regu- 
late commerce with foreign nations, and that includes the 
transportation of persons as well as goods. Congress 
alone can determine the conditions upon which foreigners 
shall be permitted to land and remain in the country. 
The State may, indeed, as a matter of self-preservation, 
exclude convicts, paupers, persons having contagious or 
incurable diseases, or likely to become a charge upon it. 
Whatever legislation is required for any thing further 
must proceed from Congress. Except in the cases men- 
tioned, its power is absolute and exclusive. Yet the legis- 
lation. l)oth (_)f the State and of the city of San Francisco, 



377 

agaiiist the Cliinese, has heeii in dircM-t (lisrei;"ai'(l ol' this 
well-settled doctrine of coiistitutioiuil law. 

Again, the President and Senate oi' the United States 
are vested exclusively with the d^'atv-making power of the 
government. That j)()\ver extends to all subjects of foi-- 
eign commerce, to all forms of intercourse w^th foreign 
nations, and may prescribe the rights and privileges which 
shall be accorded to their citizens or sabjects. By treaty, 
the conditions upt)n wliich foreigners shall be allowed to 
i-eside, do business, purchase and bold ])ro[)eiiy in tbe 
countiT, may be designated. And the Constilution de- 
clares that '-all treaties made or which shall be made 
under the authority of the United States, shall be the su- 
preme law of the laud." As will be seen hereafter, the 
legislation — State and municipal— of Cahfornia, has been 
directly in the face of the express and positive stipula- 
tions of our treaties with China. 

Again, the Fourteenth Amendment of the Constitution 
declares that no State shall deny to (unj person within its 
jurisdiction " the equal protection of the laws "—a provi- 
sion which makes equality before the law the constitu- 
tional right of everii person wuthin the territory of the 
United States, fi-om whatever country he may have come, 
or from whatever race he may have descended. Yet the 
legislation — State and municipal— of California against 
the Chinese has been in open and flagrant disregard of 
this command. So palpable has been this disi-egard that 
no just man in his senses could deny it. 

For some centuries previously to the present one, the 
policy of China was to exclude intercourse with foreign 
nations, except for purposes of trade at a few designated 
ports. All entrance into the interior of the country, and 
even trading, except at the points designated, was strictly 
forbidden, and the law imposing the prohibition was rig- 
orously enforced. Many attempts were made by Euro- 
pean nations to induce the Chinese government to make 
treaties with them, but approaches of the kind were gen- 



378 

erally repelled, or the reception of ministers was alTowed 
only on condition of performing such acts of humiliation 
as few nations would permit. 

In August, 1842, as the result of the war between Eng- 
land and China, caused by the seizure by the Chinese gov- 
ernment of opium imported in violation of its laws by the 
East India Company, a treaty was signed between them 
providing for •' lasting peace and friendship between 
them," and also the payment by China to England of 
twenty-one millions of dollars. 

Americans, ever since their independence, had carried 
on trade with China, and had at this time a factory at 
Canton. They had no trouble with the Chinese people or 
the government, and all that the Chinese government had 
yielded by compulsion to the Enghsh, it freely granted to 
them by a treaty made July 13th, 1844, negotiated on be- 
half of the United States by our minister, Caleb Cushing. 
This treaty was ratified in December of the following 
year. It opens by stating that " The United kStates of 
America and the Ta Tsing Empire, desiring to establish 
firm, lasting, and sincere friendship between the two na- 
tions, have resolved to fix, in a manner clear and positive, 
by means of a treaty or general convention of peace, 
amity, and commerce, the rules which shall in future be 
mutually observed in the intercourse of their respective 
countries." 

And it declares, in its first article, that "there shall be 
a perfect, permanent, and universal peace, and a sincere 
and cordial amity between the United States of America, 
on the one part, and the Ta Tsing Empire, on the other 
part, and between their people, respectively, without excep- 
tion of persons or places." And, in article nineteen, that 
" all citizens of the United States in China, peaceably at- 
tending to then' aftairs, being placed on a common footing 
of amity and good-will with subjects of China, shall re- 
ceive and enjoy, for themselves and everything a[iper- 
taining to them, the special protection of the local authuri- 



870 

ties of government, who shall (lofend them iVoiii all insiiK 
or injury of any sort on the part of the (liinesc. ll' their 
dwellings or property he threatened or attacked by niohs, 
incendiaries, or other violent or lawless persons, the local 
officers, on recjuisition of the consul, will immediately 
despatch a military force to disperse the rioters, and will 
apprehend the guilty individuals and pimish them with 
the utmost rigor of the law." 

There is, throughout this treaty, an unusual and studied 
warmth of expression, and its thirty-four articles are all 
in favor of Americans. There is not one securing any 
special right or advantage to China, and no complaint has 
heen made that a single article has ever been violated. 

The peace between England and China, following the 
enforced treaty between those two countries, was not real. 
There were continued riots at Canton, and in May, 1<S47, 
British ships-of-war captured some Chinese forts ; and 
in 1856 the two nations were in open war. President 
Buchanan sent Hon. William B. Reed, of Philadelphia, to 
watch the course of events, and to act the part of media- 
tor and peace-maker when opportunity should offer. He 
endeavored, in vain, to persuade the Chinese officials to 
yield to the demands of England. But in the midst of 
the troubles with that country, and on the 18th of June, 
1858, a new treaty was signed between the United States 
and China. In it the Chinese government reiterated, in 
equally strong language, their cordial i-egard and appre- 
ciation of the United States. In its first paragraph it de- 
clares that "there shall be, as there have always been, 
peace and friendship between the United States of Amer- 
ica and the Ta Tsing Empire, and between their people, 
respectively. They shall not insult or oppress each other 
for any trifling cause, so as to produce an estrangement 
between them; and if any other nation should act unjustly 
or oppressively, the United States will exert their good 
offices, on being informed of \he case, to bring about an 



880 

amicable arrangement of the question, thus showing their 
friendly feelings."— (12 Stats, at Large, 1,023.) 

In article eleven it declares that "all citizens of the 
United States of American in China, peaceably attending 
to their affairs, being placed on a common footing of amity 
and good-will with subjects of China, shall receive and 
enjoj^ for themselves and everything appertaining to them, 
the protection of the local authorities of government, who 
shall defend them from all insult or injury of any sort. 
If their dwellings or property he threatened or attacked 
by mobs, incendiaries, or other violent or lawless persons, 
the local officers, on requisition of the consul, shall imme- 
diately despatcli a military force to disperse the rioters, ap- 
prehend the guilty individuals, and punisli them with the 
utmost rigor of the law." 

And in article tw^enty-nine, protection is given to Chris- 
tians teaching and following the principles of their relig- 
ion. It is as follows: '' Tlie principles of the Christian re- 
ligion, as professed by the Protestant and Roman Catholic 
Churches, are recognized as teaching men to do good, and 
to do to others as they would have others do to them. 
Hereafter those who quietlj^ profess and teach these doc- 
trines shall not be liarassed nor persecuted on account' of 
their faith. Any person, whether citizen of the United 
States or Chinese convert, who, according to these tenets, 
peaceably teaches and pi'actices the principles of Christi- 
anity, shall in no case be interfered with or molested." 

It is seldom that tlie annals of diplomacy exhibit such 
a manifestation of trust and friendship. 

In 1868 Hon. Anson Burlingame came to the United 
States at the head of a mission from China. It is still 
fresh in the recollection of all, with what enthusiasm this 
mission was received, how its members were entertained 
and banqueted on their arrival at San Francisco, and how 
some of the leading men of the State rejoiced at what they 
believed to be the opening of intercourse between the two 



881 

countries, which would be iuiuu'iiscly hiMicHciiil to tlio 
United States, and particiilaiiy to (';iliroi-iii:i. 

In July, 1868, througli this mission, additional articles 
to tlic treaty of 1858 were conchided and si<»-ne(l. Of tliese 
articles the 5th, 6th, and 7tli are as f )ll<)\vs: 

"Article 5. The Uuitecl Htatos of America and the iMuptuor ol' China 
cordially recognize the inherent and inalienable right oi' man to change 
his home and allegiance, and also the mutual advantage of the free mi- 
gration and emigration of their citizens and subjects, respectively, from 
the one country to the other, for purposes of curiosity, of trade, or as per- 
manent residents. The high contracting parties, therefore, join in repro- 
bating any other than an entirely voluntary emigration for thes(! puri)oses. 
They consequently agree to pass laws making it a penal offence for a citi- 
zen of the United States or Chinese subjects to take Chinese subjects 
either to the United States or to any other foreign country, or for a Chi- 
nese subject or citizen of the United States to take citizens of the United 
States to China or to any other foreign country, without their free and 
voluntary consent respectively. 

"Article 6. Citizens of the United States, visiting or residing in 
China, shall enjoy the same privileges, immunities, or exemptions in re- 
spect to travel or residence, as may there be enjoyed by the citizens or 
subjects of the most favored nation, and reciprocally Chinese subjects, 
visiting or residing in the United States, shall enjoy the same privileges, 
immunities, and exemptions in respect to travel or residence, as may 
there be enjoyed by the citizens or subjects of the most favored nation. 
But nothing herein contained shall be held to confer naturalization upon 
citizens of the United States in China, nor upon the subjects of China in 
the United States. 

" Article 7. Citizens of the United States shall enjoy all the privileges 
of the public educational institutions under the control of the govern- 
ment of China ; and, reciprocally, Chinese subjects shall enjoy all the pri v- 
ileges of the public educational institutions under the control of tlie gov- 
ernment of the United States which are enjoyed in the respective countries 
by the citizens or subjects of the most favored nation. The citizens of 
the United States may freely establish and maintain schools within the 
Empire of China, at tho.se places where foreigners are by treaty permitted 
to reside ; and, reciprocally, Chinese subjects may enjoy the same priv- 
ileges and immunities in the United States." 

"With these treaties — with tliese strong- expressions of 
friendship and pledges of protection to the people of the 
two countries — by each to the people of the other coiui- 
try — the legislation of California, and also of the city of 
San Francisco, has been almost constanth' in contlict. 



882 

On the 25tri of April, 1855, the Legislature of the State 
passed an act entitled "An act to discourage immigration 
to this State of persons who cannot hecome citizens 
thereof," which imposed a tax of fifty dollars upon every 
person arriving in the State who was incompetent to he- 
come a citizen. This was directed especially at the Chi- 
nese, as the,y, with a very few exceptions, were the only 
persons coming to this country, who, under our laws, could 
not hecome naturalized. Tliis act was declared unconsti- 
tutional hy the Supreme Court of the State in People vs. 
Downer (7 CaL, 169). 

On the 26th of April, 1858, an act was passed entitled 
"An act to prevent the further immigration of Chinese or 
Mongolians to this State," which ahsolutely forhade their 
landing in California, under a penalty of from four hun- 
dred to six hundred dollars, and imprisonment. This, 
also, was held to he unconstitutional and was never en- 
forced. 

On the 26th of April, 1862, was passed "An act to pro- 
tect free, white labor against competition with Chinese 
coolie labor, and discourage the immigration of the Chinese 
into the State of California," which imposed on each Chi- 
nese, male or female, a monthly capitation tax of two dol- 
lars and a half. This act was declared unconstitutional 
hy the Supreme Court of the State in Lin Sing vs. Wash- 
burn (20 CaL, 534). 

In the year 1872, the Legislature adopted a series of 
codes, embracing the wjiole body of the law of the State. 
One of these was entitled " The Political Code" of the 
State, and a chapter, under the title of " General Po- 
lice " of the State, contains provisions relating to immi- 
gration. Some of the sections of the chapter were 
amended in 1874. They required the master of a ves- 
sel arriving at any port of the State, bringing passen- 
gers from any place out of the State, to make a written 
report to the Commissioner of Immigration at such port, 
stating, amongst other things, the name, place of birth, 



last rosiclonee, aii'o, and occupalioii i)l' all passciio^ors 
who wei-c not citizens of the United States, and whether 
any of thi^ passeni;\'rs, tints reported, •' are hniatie, idi- 
otic. d(>af, (hiiuh, hlind, crippled, or infn-ni and not ar- 
eonipanied by atiy felativc ahle to siippijrt them, of K'wd 
or abandoned women.'' Otic section, as amended in 
1874, required " the Commissioner of Imtnigration 'to 
satisfy himself whether or not any passenger who shall 
arrive in this State by vessels from any foreign port or 
place (who is not a citizen of the United States), is luna- 
tic, idiotic, deaf, dumb, blind, crippled or intinn, and is 
not accompanied by relatives who are able and willitig to 
support him, or is likely to l)econie permanently a public 
charge, or has been a pauper in any other country, or is, 
from sickness or disease, existing either at the time of 
sailing from the port of departure, or at the time of his 
arrival in this State, a public charge, or likely to become 
so, or is a convicted crimittal, or a lewd or debauched wo- 
man ;' atid then declare that ' no person who shall belong 
to either class, or who possesses any of the intirtnities or 
vices specified herein, shall be permitted to land in this 
State, unless the master, owtier, or consignee of said vessel 
shall give a joint and several bond to the people of the 
State of Cahfornia, in the penal sum of five hundred dol- 
lars, in gold coin of the United States, conditioned to in- 
demnify and save harmless every county, city and county, 
town and city of this State against all costs and expenses 
which may be by them necessarily incurred for the relief, 
support, medical care, or an}^ expense whatever, resulting 
from the infirmities or vices herein referred to, of the per- 
sons named in said bonds, within two years from the date 
of said bonds; . . . and if the master, owner, or con- 
signee of said vessel shall tail or refuse to execute the 
bond herein required to be executed, they are required to 
retain such persons on board of said vessel until said ves- 
sel shall leave the port, and theti convey said passengers 
from this State; and if said ntaster, owner, or consignee 



884 

shall fail or refuse to perform the dntj and service last 
herein enjoined, or shall permit said passengers to escape 
from said vessel and land in this State, they shall forfeit 
to the State the sum of five hundred dollars, in gold coin 
of the United States, for each passenger so escaped, to be 
recovei-ed by suit at hiw.' " 

Under the provisions of this section the case of Ah Fong, 
a Chinese woman, came before the Circuit Court on writ 
of habeas corpas. 

The case was as follows: The petitioner, a sul)ject of 
the Emperor of China, arrived at the port of San Fran- 
cisco as a passenger on board the American steamsliip 
"Japan," owned by the Pacific Mail Steamship Company, 
under the command, as master, of J. H. Freeman, in Au- 
gust, 1874. On the arrival of the steamship she was 
boarded by the Commissioner of Immigration of Cah- 
fornia, who proceeded, under tlie provisions of the above 
statute, to examine into the character of the petitioner 
and of other alien passengers. Upon such examina- 
tion the C/ommissioner found, and so declared, that the 
petitioner and twenty-one other persons, also subjects of 
the Empire of China, arriving as passengers by the same 
steamship, were lewd and debauched women. He there- 
upon prohibited the mastor of the steamship from land- 
ing the women, uidess he or the owner or consignee of 
the vessel gave the bonds required by the statute. iSTei- 
ther of the parties designated would consent to give the 
required bonds, and the women were consequently de- 
tained by the master on board of the steamship. The}^ 
thereupon applied for a writ of habeas corpus to a District 
Court of the State, to inquire into the cause of their de- 
tention, alleging in their petition its illegality, on the 
ground that the statute under which they were held was 
in contravention of the treaty between the United States 
and the Empire of China, and in conflict with the Con- 
stitution of the United States, and denying, also, that they 
were eitlier lewd or debauched women. The District 



:W5 

Court granted the iipplicutioii and licai'd llic [jctitioners, 
and after the lieai'ing-, remanded tlieni hack to the charge 
of the master of tlie steamshi]), Imhling tliat the statute 
of California was neither in Niohition of the-trt-atj or the 
Constitution, and that the evidence presented justified the 
finding of the Commissioner, that the petitioners were 
lewd and debauched women. Tlie petitioners tliereupon 
applied to the Chief Justice of the State for another writ 
of habeas corpus, alleging the illegality of their restraint, 
on grounds similar to those taken in tlie petition to tlio 
District Court, and also alleging tliat they were, since the 
order of the District Court remanding them to the custody 
of the master of the steamship, about to be forcibly re- 
turned to China against their will and consent. They 
therefoi'e prayed that with the writ of hnheas corpus a 
warrant might issue to the Sherifi" of the city and county 
of San Francisco to take them into his custody. The Chief 
Justice granted the writ, returnalJe before the Supreme 
Court of the State, and at the same time issued a warrant 
commanding the Coroner of the city and county to take 
the parties into his custody. 

Under this warrant the parties were taken into the cus- 
tody of the Coroner and brought before the Court, which 
sustained the ruling of the District Court, and denied the 
application of the parties to be discharged. It further di- 
rected that the Coroner should return the parties to the 
master or owner or consignee of tlie steamship Japan, on 
board of the steamship, and required such master, owner, 
or consignee to retain the parties on board of the steam- 
ship until she should leave the port of San Francisco, and 
then to carry tliem beyond the State. 

Its order also provided, that in case the steamship 
J(/paa was not in the port of San Francisco, the Coroner 
should retain the parties in his possession until the arrival 
in port of the steamship, and then enforce the order re- 
turning the parties to the vessel, or retain the parties until 
the further directi<^n of the Court. 



38() 

The petitioner was one of the women thus held l)y the 
Coroner, and she invoked the aid of tlie Circuit Court to 
be released from her restraint, alleging, as in the other ap- 
plications, that the restraint was illegal, that the statute 
which is supposed to authorize it was in contravention of 
the treatj' with China and the Constitution of the United 
States, and averring that she was not within either of the 
classes designated in the statute. It further appeared from 
the special traverse to the return of the Coroner, and was 
admitted by counsel, that since the judgment of the Su- 
preme Court, the steamship Japan had sailed from tiie port 
of San Francisco, and would not probably return under 
three months, and that Freeman had been discharged from 
the service of the steamship company, and was no longer 
master of the Ja.pan. 

The case was heard in the Circuit Court by Judge Field, 
assisted by Judges Sawj^er and Ilofi'maii. 

There was no evidence presented to the Court that the 
women were lewd or abandoned women, except that the 
Commissioner of Immigration had so concluded, and it 
was stated that he came to such conclusion from their 
general appearance and the particular sleeves they wore 
as part of their dress. It was not pretended or suggested 
that the Commissioner had taken any testimony upon 
the subject, or had any information whatever, except from 
personal observation of them, to govern his action in the 
matter ; and, in point of fact, two of the women were 
wives of persons at tlie time in the employment of Mr. 
William C. Ralston, the cashier of the Bank of Califor- 
nia, at his residence at Belmont. He so stated to the pre- 
siding judge, and ofiered his athdavit to that effect, with 
that of his servants. 

There is no doubt that a State, in the interest of decency 
and morality, may exclude from its borders lewd and al^an- 
doned women who persist in following prostitution, but in 
every governmerit which makes any pretence of ati-'ording 
security against wanton accusation, some evidence of sudi 



;}S7 

purpose slionld bo produced more tlinii the inerc^ si'iiess or 
infereiiee of :i ('(^minissiouer of liuini^-rntion, from per- 
sonal iiispt'etioii of the parties whilst walking- over the 
deek of a vesseL The law of ( 'afiforDia in this ease (as 
will be seen) confounded all distinctions, and opened the 
door to the greatest oppression and cruelty. Tn deciding 
\\\o case, after stating the provisions of tlu^ section quoted, 
Judge Field gave the following opinion: 

" In re Ah Fong. 

" The decision of the District Court, and of the Supreme Court of the 
State, although entitled to great respect and consideration from the ac- 
knowledged ability and learning of their judges, is not binding upon this 
Court. The petitioner being an alien, and a subject of a country having 
treaty relations with the government of the United States, has a right 
to invoke the aid of the federal tribunals for her protection, vrhen her 
rights, guaranteed by the treaty, or the Constitution, or any law of Con- 
gress, are in any i-espect invaded ; and is, of course, entitled to a hearing 
upon any allegation in proper form that her rights are thus invaded. 

"I proceed, therefore, to the consideration of the questions presented, 
notwithstanding the adjudications of the State tribunals." 

Here the Judge quoted the provisions of the section 
given above, and continued as follows : 

" The provisions of this section are of a very extraordinary character. 
They make no distinction between the deaf, the dumb, the blind, the 
crippled, and the infirm, who are poor and dependent, and those who 
are able to support themselves and are in possession of wealth and all its 
appliances. If they are not accompanied by relatives, both able and 
willing to support them, they are prohibited from landing within the 
State, unless a specified bond is given, not by them or such competent 
sureties as they may obtain, but by the owner, master, or consignee of 
the vessel. Neither do the provisions of the statute make any distinc- 
tion between a present pauper, and one who has been a pauper, but has 
ceased to be such. If the emigrant has ever been within that unfortnate 
class, notwithstanding he may have at the time ample means at his com- 
mand, he must obtain the designated bond or be excluded from the 
State. They subject also to the same condition, and possible exclusion, 
the passenger whose sickness or disease has been contracted on the pas- 
sage, as well as the passenger who was sick or diseased on his departure 
from the foreign port. It matters not that the sickness may have been 
produced by exertions for the safety of the ship or passengers, or by at- 
tentions to their wants or health. If he is likely on his arrival to be- 

20 



888 

coiiie a public charge, he nuist obtain the bond designated, or be denied 
a landing within the State. Nor does the statute make any distinction 
between the criminal convicted for a misdemeanor, or a felony, or lor an 
oflteuce malum in se, or one political in its character. The condemned 
patriot, escaping from his prison and fleeing to our shores, stands under 
the law upon the same footing with the common felon who is a fugitive 
from justice. Nor is there any difference made between the woman, 
whose lewdness consists in private unlawful indulgence, and the woman 
who publicly prostitutes her person for hire, or between the woman de- 
bauched l)y intemperance in food or drink, or debauched by the loss of 
her chastity. 

"_A statute thus sweeping in its terms, confounding by genei'al desig- 
nation persons widely variant in character, is not entitled to any verj^ 
high commendation. If it can be sustained as the exercise of the 
police power of the State as to any persons brought within any of the 
classes designated, it must be sustained as to all the persons of such 
class. That is to say, if it can be sustained when applied to the infirm, 
who is poor and dependent, when unaccompanied by his relatives, 
able and willing to support him, it must be sustained when applied 
to the infirm, who is surrounded by wealth and its attendants, if he is 
thus unaccompanied. If it can be sustained when applied to a woman 
whose debauchery consists in the prostitution of her person, it must be 
sustained when applied to a woman whose debauchery consists in her 
intemperance in food and drink ; and even when applied to the repent- 
ant Magdalen, who has once yielded to temptation and lost her virtue. 
The Commissioner of Immigration is not empowered to make any dis- 
tinction between persons of the same class; and there is nothing on the 
face of the act which indicates that the Legislature intended that any 
distinction should be made. 

" It is undoubtedlj' true that the police power of tlie State extends to 
all matters relating to the internal government of the State, and the ad- 
ministration of its laws, which have not been surrendered to the General 
Government, and embraces regulations affecting the health, good order, 
morals, peace, and safety of society. Under this power all sorts of re- 
strictions and burdens may be imposed, having for their object the ad- 
vancement of the welfare of the people of the State, and when these are 
not in conflict with established principles, or any (•onstitutional prohibi- 
tion, their validity cannot be questioned. 

■' It is equally true that the police power of the State may be exercised 
by precautionary measures against the increase of crime or pauperism, 
or the spread of infectious diseases from persons coming from other coun- 
tries ; that the State may entirely exclude convicts, lepers, and persons 
afflicted w-ith incurable disease; may refuse admission to paupers, idiots, 
and lunatics and others, who from physical causes are likely to become a 
charge upon the public, until security is afforded that they will not be- 
come such a charge; and may isolate the temporarily diseased until the 



;5s<) 

(laiiiicr of coiita.iiion is fionc. The leuality of procaiilionary moasnrcs of 
this kind has never been doubted. Tlie rif^ht of the State in this respeet 
has its foundation, as observed by Mr. Justice (Jrier in the Passenger 
Cases, in thesaeitd hiw of self-(h'frnc<\ whicli no jiower <>ranted to Con- 
<;ress can restrain or annul. 

•• But tlu> extent of tlu' jiower of tlie Slate to excluih' a foreigner from 
its territory is limited by tlie riglit in witieh it had its origin, the rijilit 
of self-defence. Whatever outside of the h'gitimat<" exercise of this right 
atYects the intercourse of foreigners with our people, their immigration to 
this country and residence therein, is exclusively within the jurisdiction 
of the Ceueral (Tovernment, and is not subject to State control or inter- 
ference. To that government the treaty-making power is confided ; also 
the power to regulate commerce with foreign nations, which includes in- 
tercourse with them as well as traffic ; also the power to prescribe the 
coiulitions of migration or importation of persons, and rules of naturali- 
zation : whilst the States are forbidden to enter into any treaty, alliance, 
or confederation with other nations. 

" I am aware that the right of the State to exclude from its limits any 
persons whom it may deem dangerous or injurious to the interests and 
Avellare of its citizens, has been asserted by eminent judges of the Su- 
preme Court of the United States. Mr. Chief Justice Taney maintained 
the existence of this right in his dissenting opinion in the Passenger 
Cases, and asserted that the power had been recognized in previous de- 
cisions of the Court. The language of the opinion in the case of the City 
of New York vs. ]\Iiln (11 Peters, 141) would seem to sustain this doc- 
trine. But neither in the Passenger Cases nor in the case of the City of 
New York vs. Miln, did the decision of the Court require any considera- 
tion of the power of exclusion which the State possessed ; and all that 
was said by the eminent judges in those cases upon that subject, was ar- 
gumentative and not necessary and authoritative. 

" But independent of this consideration, we cannot shut our eyes to 
the fact that much which was formerly said upon the power of the State 
in this respect, grew out of the necessity whicli the Southern States, in 
which the institution of sla\ ery existed, felt of excluding free negroes 
from their limits. As in some States negroes were citizens, the right to 
exclude them from the Slave States could only be maintained by the as- 
sertion of a power to exclude all persons whom they might deem dan- 
gerous or injurious to their interests. But at this day no such power 
would be asserted, or if asserted, allowed in any Federal Court. And 
the most serious consequences affecting the relations of the nation with 
other countries might, and undoubtedly would, follow from any attempt 
at its exercise. Its maintenance would enable any State to involve the 
nation in war, however disposed to peace the people at large might be. 

" Where the evil apprehended by the State from the ingress of for- 
eigners is that such foreigners will disregard the laws of the State, and 
thus be injurious to its peace, the remedy lies in the more vigorous en- 



390 

forcement of the laws, not in tlie exclusion of the parties. Gambling is 
considered by most States to be injurious to the morals of their people, 
and is made a public offence. It would hardly be considered as a legiti- 
mate exercise of the police power of the States to prevent a foreigner 
who had been a gambler in his own country from landing in ours. If, 
after landing, he pursues his former occupation, fine him, and, if he per- 
sists in it, imprison him, and the evil will be remedied. In some States 
the manufacture and sale of spirituous and intoxicating liquors are for- 
bidden and punished as a misdemeanor. If the foreigner coming to our 
shores is a manufacturer or dealer in such liquors, it would be deemed 
an illegitimate exercise of the police power to exclude him, on account 
of his calling, from the State. The remedy against any apprehended 
manufacture and sale would lie in such case in the enforcement of the 
penal laws of the State. So if lewd women, or lewd men, even if the 
latter be of that baser sort, who, when Paul preached at Thessalonica, 
set all the city in an uproar, (Acts xvii., verse 5,) land on our shores, the 
remedy against any subsequent lewd conduct on their part must be 
found in good laws, or good municipal regulations and a vigorous police. 

" It is evident that if the possible violation of the laws of the State 
by an emigi-ant, or the supposed immorality of his past life or profession, 
where that immorality has not already resulted in a conviction for a 
felony, is to determine his right to land and to reside in the State, or 
to pass through into other and interior States, a door will be opened to 
all sorts of oppression. The doctrine now asserted by counsel for the 
Commissioner of Immigration, if maintained, would certainly be invoked, 
and at no distant day, when other parties, besides low and despised Chi- 
nese women, are the subjects of its application, and would then be seen 
to be a grievous departure from principle. 

" I am aware of the very general feeling prevailing in this State against 
the Chinese, and in opposition to the extension of any encouragement to 
their immigration hither. It is felt that the dissimilarity in physical 
characteristics, in language, in manners, religion, and habits, will always 
prevent any possible assimilation of them with our people. Admitting 
that there is gi-ound for this feeling, it does not j ustify anj' legislation 
for their exclusion, which might not be adopted against the inhabitants 
of the most favored nations of the Caucasian race, and of Christain faith. 
If their further immigration is to be stopped, recourse must be had to 
the Federal Government, where the whole power over this subject lies. 
The State cannot exclude them arbiti-arily, nor accomplish the same end 
by attributing to them a possible violation of its municipal laws. It is 
certainly desirable that all lewdness, especially when it takes the form 
of prostitution, should be suppressed, and that the most stringent meas- 
ures to accomplish that end should be adopted. But I have little respect 
for that discriminating virtue which is shocked when a frail child of 
China is landed on our shores, and yet allows the bedizened and painted 
harlot of other countries to parade our streets and open her hells in broad 
(hxy, without molestation and without censure. 



391 

" By the Sth article of the treaty between the United States ami Cliina, 
adopted on the 2Sth of Jnly, 1868, the United States and the Emperor 
of China recognize the inherent and inalienable right of man to change 
his home and allegiance, and also the mntual advantage of the free mi- 
gration and emigration of their citizens and subjects respectively from 
the one country to the other, for purposes of curiosity, of trade, or as per- 
manent residents. The Gth article declares that citizens of the United 
States visiting or residing in China shall enjoy the same privileges, im- 
munities, or exemptions in respect to travel or residence as may there be 
enjoyed by citizens or subjects of the most favored nation. And, recip- 
rocally, that Chinese subjects visiting or residing in the United 
States shall enjoy the same privileges, immunities, and exemptions in re- 
spect to travel or residence as may there be enjoyed by citizens or sub- 
jects of the most favored nation. 

" The only limitation upon the free ingress into the United States and 
egress from them of subjects of China is the limitation which is applied to 
citizens or subjects of the most favored nation ; and as the General Gov- 
ernment has not seen tit to attach any limitation to the ingress of sub- 
jects of those nations, none can be applied to the subjects of China. And 
the power of exclusion by the State, as we have already said, extemls 
only to convicts, lepers and persons incurably diseased, and to paupers 
and persons who, from physical causes, are likely to become a public 
charge. The detention of the petitioner is, therefore, unlawful under 
the treaty. 

" But there is another view of this case equally conclusive for the dis- 
charge of the petitioner, which is founded upon the legislation of Con- 
gress since the adoption of the Fourteenth Amendment. That amend- 
ment in its first section designates who are citizens of the United States, 
and then declares that no State shall make or enforce any law which 
abridges their privileges and immunities. It also enacts that no State 
shall deprive any person (dropping the distinctive designation of citizens) 
of life, liberty, or property without due process of law ; nor deny to any 
jjcrson the equal protection of the laws. The great fundamental rights 
of all citizens are thus secured agaiu.st any State deprivation, and all per- 
sons, Avhether native or foreign, high or low, are, whilst within the juris- 
diction of the United States, entitled to the equal protection of the laws. 
Discriminating and partial legislation, favoring particular persons, or 
against particular persons of the same class, is now prohibited. Equality 
of privilege is the constitutional right of all citizens, and equality of pro- 
tection is the constitutional right of all persons. And equality of protection 
implies not only equal accessibility to the Courts for the prevention or re- 
dress of wrongs and the enforcement of rights, but equal exemption, with 
others of the same class, from all charges and burdens of every kind. 
Within these limits the power of the State exists, as it did previously to 
the adoption of the amendment, over all matters of internal police. And 
within these limits the act of Congress of May 31st. 1870, restricts the 
action of the State with respect to foreigners immigrating to our country. 



39t2 

' No tax or cluuge,' .siiys the act, ' shall be imposed or enforced by any State 
upon any person immigrating thereto from a foreign country which is not 
equally imposed or enforced u^jon every person immigrating to such State 
from any other foreign country, and any law of any State in conflict with 
this provision is hereby declared null and void.' — (16 Statutes at Large, 
144.) 

■' By the term c/iar(/c, as here used, is meant any onerous condition, it 
being the evident intention of the act to prevent anj^ such condition from 
being imposed upon any person immigrating to the country, which is not 
equally imposed upon all other immigrants, at least upon all others of 
the same class. It was passed under and accords with the spirit of the 
Fourteenth Amendment. A condition which makes the right of the im- 
migrant to land depend upon the execution of a bond by a third party, 
not under his control and whom he cannot constrain by any legal proceed- 
ings, and whose execution of the bond can only be obtained upon such 
terms as he may exact, is as onerous as any charge which can well be im- 
posed, and must, if valid, generally lead, as in the present case, to the ex- 
clusion of the immigrant. 

" The statute of California, which we have been c<msidering, imposes 
this onerous condition upon persons of particular classes on their arrival 
in the ports of the State by vessel, but leaves all other foreigners of the 
same classes entering the State in any other way, by land from the British 
possessions or Mexico, or over the plains by railway, exempt from any 
charge. The statute is, therefore, in direct conflict with the act of Con- 
gress. 

" It follows from the views thus expressed, that the petitioner must be 
discharged from further restraint of her liberty ; and it is so ordered." 

The other twent}^ persons of the twenty-one were also 
discharged immediately upon the rendition of this decision. 
Of the twenty-two who had been before the Supreme Court 
of the State, one did not apply to the Circuit Court, but ap- 
[lealed from the decision refusing her discharge to the Su- 
[)reme Court of the United States. Her case came before 
that Court under the title of Chy Lung vs. Freeman, and 
was decided at the October Term in 1875.— (2 Otto, 276.) 

The judgment of the Supreme Court of the State was 
unanimously reversed, accompanied with indignant con- 
demnation of the statute of California. 

Said Mr. Ju.^tice Miller, speaking for the Court: 

" It is hardly possible to conceive a statute more skillfully framed, to 
place in the hands of a single man the power to prevent entirely vessels 
engaged in a foreiga trade, say with China, from carrying passengers, oi to 
compel them to submit to systematic extortion of the grossest kind. 



898 

''The Commissioiu;!- has but to go aboard a vessel lilkd with passengers 
ignorant of our hinguage. and our laws, and without trial or hearing or 
evidence, hut from the external appearances of persons with whose former 
habits he is unfamiliar, to point with his linger to twenty, as in this 
ease, or a hundred if he ehouses, and say to the master, these are idiots, 
these are i)aupcrs. tlicsc are convicted criminals, and these are lewd 
wonuMi, and tlu'se others are debauched women. I have here a hun- 
dred blank Ibrms of bonds, printed. I require you to till me up and sign 
each of these for $500 in gold, and that you furnish me two hundred 
different men, residents of this State, and of sufficient means, as sureties 
on these bonds. I charge you five dollars in each case for preparing the 
bond and swearing your sureties, and I charge you seventy-five cents each 
for examining these passengers, and all others you have on board. If 
you don't do this you are forbidden to land your passengers under a 
heavy penalty. 

■'But I have the ))(>wer to commute with you for all this lor any sum I 
may choose to take in cash. I am open to an olYer, but you must remem- 
ber that twenty per cent, of all I can get out of you goes into my own 
pocket, and the remainder into the treasury of California 

" Individual foreigners, however distinguished at home for their social, 
their literary, or their political character, are helpless in' the presence of 
this potent Commissioner. Such a person may offer to furnish any amount 
of surety on his own bond, or deposit any sum of niouey, but the law of 
California takes no note of him. It is the master, owner, or consignee of 
the vessel alone whose bond can be accepted. And so a silly, an obsti- 
nate, or a wicked Commissioner, may bring disgrace upon the whole 
country, the enmity of a powerful nation, or the loss of an equally pow- 
erful friend. 

'• While the occurrence of the hypothetical case just stated may be 
highly improbable, we venture the assertion that if citizens of our own 
government were treated by any foreign nation as subjects of the Em- 
peror of China have been actually treated under this law, no Admin- 
istration could withstand the call for a demand on such government for 
redress. 

"Or, if this plaintift' and her twenty companions had been subjects of 
the Queen of Great Britain, can any one doubt that this matter would 
have been the subject of international inquiry, if not of a direct claim 
for redress ? Upon whom would such a claim be made ? Not upon the 
State of California, for by our Constitution she can hold no exterior rela- 
tions with other nations. It would be made upon the government of 
the United States. If that government should get into a difficulty which 
would lead to war or to suspension of intercourse, would California alone 
suffer, or all the Union ? If we should conclude that a pecuniary indem- 
nity was proper as a satisfaction for the injury, would California pay it, 
or the Federal Government? If that government has forbidden the 
States to hold negotiations with any foreign nations, or to declare war, 



394 

and has taken the whole subject of these relations upon herself, has the 
Constitution, which provides for this, done so foolish a thing as to leave 
it in the power of the States to pass laws whose enforcement renders the 
General Government liable to just reclamations which it must answer, 
while it does not prohibit to the States the acts for which it is held re- 
sponsible ? 

" The Constitution of the United States is no such instrument. The 
passage of laws which concern the admission of citizens and subjects of 
foreign nations to our shores belongs to Congress and not to the States. 
It has the power to regulate commerce with foreign nations ; the respon- 
sibility for the character of those regulations and the manner of their 
execution belongs solely to the National Government. If it be otherwise, 
a single State can at her pleasure embroil us in disastrous quarrels with 
other nations. 

"We are not called upon by this statute to decide for or against the 
rigiit of a State, in the absence of legislation by Congress, to protect her- 
self by necessary and proper laws against paupers and convicted crimi- 
nals from abroad, nor to lay down the definite limit of such right, if it 
exist. vSuch a right can only arise from a vital necessity for its exercise, 
and cannot be carried beyond the scope of that necessity. When a State 
statute, limited to provisions necessary and appropriate to that object 
alone, shall in a proper controversy come before us, it will be time enough 
to decide that question. The statute of California goes so far beyond 
what is necessary or even appropriate for this purpose, as to be wholly 
without any sound definition of the right under which it is supposed to 
be justified 

" The money when paid does not go to any fund for the benefit of im- 
migrants, but is paid into the general treasury' of the State and devoted 
to the use of all her indigent citizens. The blind, or the deaf, or the 
dumb passenger is subject to contribution, whether he be a rich man or 
a pauper. The patriot seeking our shores, after an unsuccessful struggle 
against despotism in Europe or Asia, may be kept out because there his 
resistance has been adjudged a crime. The woman whose error has been 
repaired by a happy marriage and numerous children, and whose loving 
husband brings her with his wealth to a new home, may be told she must 
pay around sum before she can land, because it is alleged that she was 
debauched by her husband before marriage. Whether a young woman's 
manners are such as to justify the Commissioner in calling her lewd may 
be made to depend on the sum she will pay for the privilege of landing 
in San Francisco. 

" It is idle to pursue the criticism. In any vieAV Avhich we can take of 
this statute it is in conflict with the Constitution of the United States, 
and, therefore, void." 

The legislation of the city of San Francisco against the 
Chinese has heen equal to that of the State, and much 
iDore offensive in its character. 



895 

In July, 1870, an ordinance of llio city and county was 
passed regulating lodging-liouses. Section one required 
that every house, room, or apartment, except of prisons, 
occupied as a lodging, in which persons lived or slept, 
should contain within the walls of such house, room, or 
apartment, at least iive hundred cuhic feet of air for each 
adult person dwelling or sleeping therein; and that any 
owner or tenant of a house, room, or a[)artment, who 
should lodge or permit to he lodged in such room or apart- 
ment more than one person to every live hundred cuhic 
feet of air, should 1)C deemed guilty of a misdemeanor, 
and for every otience should he tined not less than ten nor 
more than five hundred dollars, or he imprisoned in the 
city prison not less than five days nor more than three 
months, or he punished hoth by such fine and imprison- 
ment. The ordinance also im})Osed the same penalty on 
each occupant of any such room or apartment. 

In Alay, 1873, a large numljer of Chinese in San Fran- 
cisco were arrested under this oi'dinance, and a fine of ten 
dollars inflicted on each of them. The parties fined in 
most cases preferred to go to jail rather than to pay the 
fine. By a law of the State an imprisonment for one day 
works a discharge of a fine to the amount of two dollars. 
Of this action of the Chinese, the Eccinnr/ Bulletin, a lead- 
ing joui'nal of San Francisco, thus speaks in its edition of 
May 22, 1873: 

" Chinese Obstinacy. 

" The Mongols have determined upon the policy of worrying the au- 
thorities in their attempt to enforce the ordinance prohibiting the un- 
wholesome crowding of lodging-houses, in the hope of rendering the ef- 
fort futile. 

" The large gang brought up and fined on Tuesday, with the re-in- 
forcements to-day, have completely filled the prison accommodations. 
And if the crusade is continued, the cattle pound, or some other spacious 
enclosure, will have to be utilized for their confinement. A few were in- 
clined to pay the fines imposed, but were prevented from doing so by the 
commands of the leading men in the Chinese quarter, who declared, in 
substance, that they would make the city .sick of prosecuting and main- 
taining (liinamen in prison, under this ordinance." 



896 

There was a good deal of difficulty in enforcing the or- 
dinance, on account of the nuraher of Chinese who vio- 
lated it, and their omission to pay the fines imposed. 
They were arrested in great numbers, and packed in cells 
where they had not 100 feet of cubic air to the person. 
They over-crowded the jails, and it was thought necessary 
by the authorities of tlie cit}' to adopt a polic}" wliich would 
compel them to pay their iines and at the same time pre- 
vent the immigration of others of their countrymen. 
Accordingly, on the 25th May, 1873, three oi'dinances 
were introduced in the Board, having this object in view. 

One of the oi'dinances provided that every male' per- 
son imprisoned in the count}' jail, in pursuance of a 
judgment or conviction of the Police Court of the city 
and county, should, inimediately upon his arrival at 
the jail, have the hair of his head cut or clipped to a 
uniform length of one inch from the scalp. Another of 
the ordinances provided that no person should remove or 
cause t(i be removed, tVom any cemetei-y or grave-yai'd 
within the limits of the city and county, the remains of 
any deceased person or persons there placed or disposed, 
without the written permit of the coroner of the city and 
county. The third of the ordinances imposed a license- 
tax of fifteen dollars a quarter upon keepers of laundries 
or laundry offices, or wash-houses, who employed no ve- 
hicle drawn by animal power. 

Of two of these ordinances tlie Ecening BuU.etiiL of May 
27, 1873, said as follows : 

"It is generally knovvu that to deprive a Chinaman of his 

queue is to humiliate him as deeply as is possible. 

"It is also very generally known, that the bones of no Chinaman are 
permitted to remain in a foreign land, and that all Chinese, before leaving 
their country, feel assured that, after death, no matter where they die, 
their bones will be taken back to mingle with their native sod. 

" So strict are all Chinese on these two points, that it is believed, if 
they were prevented from wearing their tails here, and if after death 
their bones were denied transportation to their native land, the immi- 
gration of this superstitious people would be eftectually stopijed, and a 
reflux commence from our shores to the Flowery Kingdom." 



'M\7 

And in its edition ol'Juni' 2(1, 187-1. the IhiUilin luid tlie 
lollowinu' artiele upon one of the ordinances: 

••The t^uPERVisoKs ox J[aik CiTTixci. 

•'The Boant of Supervisors have passed to print an ordinance re(niiring 
the cropping of the hair of every person who is serving a term in the 
jail iinder a criminal conviction. The ordinance, icliile it nominally makes 
no discrimination as to race or condition, is aimed specially at the Chinese. The 
euforceuient of the sanitary ordinance against the over-crowding of Chinese 
is just, and ought to be certain. But it should be enforced lawfully. The 
Chinese go to jail, in most cases, rather than pay the tine. The readiness 
to be fed and lodged for a week or more, at the public expense, extracts 
all the real penalty there is in the sanitary law. Five hundred or a 
tliousand Chinese going willingly to jail, and rather liking the opportu- 
nity for free board and lodging, quite superior to their own miserable ac- 
eommodations, presents a uew phase of the question. The judgment has 
no penalty. The Chinese who offend against the ordinance refuse to pay the 
tine, but go to jail and board it out. The Supervisors, casting about for 
some means of relief, have hit upon the plan of cropping the hair. White 
criminals would care nothing about this, and the- ordinance would prob- 
ably never be enforced against them. The loss of a pigtail is a great 
calamity to the Chinese. It is his national badge of honor. If it is cut 
otf, he is maimed. He will not venture home without it, and becomes a 
fixture .from very necessity. The sanitary regulations enforced in this 
way is a kind of boomerang, which comes back with telling effect." 

The qneue-eutting ordinance and the laundiy oi'dinanee 
wei'c hoth passed, but the_y Avere both vetoed bj Mayor 
Alfoi'd of th<^ city, and his action received the genei-al 
a[)proval of the Press of the State and of the cotuitry 
generahy. In liis nies.sage vetoing tlie Queue Orninance 
he stated that its njanifest motive was to inflict upon the 
persons of Cliinese convicted of iiiisdenieanors a^ punish- 
ment which, in their estimation, was shameful and de- 
gra(hng, and that, in his judgment, minor otfettces wliich 
do not l)eh)ng to the chxss of crimes called infamous 
shouhl not be punished l)y penalties, which inflicted dis- 
grace upon the person of the oftender. 

On the 3d of April, 187G, the Legislature of the State 
passed an act entitled " An act concerning lodging-houses 
and sleepjing-apartments within the limits of incorporated 
cities,*' in which it [)i-o\ided that any person or persons 



398 

found sleeping or lodging, or hired or used for the purpose 
of sleeping, any room or apartment which contained less 
than five hundred cubic feet of space in the clear, every 
such person, so keeping such room or apartment, should be 
deemed gailty of a misdemeanor and should be punished 
by a fine of not less than ten nor more than fifty dollars, 
or by both fine and imprisonment. In June afterwards, 
the Board of Supervisors of the city and county of San 
Francisco, took up and passed anew the old vetoed queue- 
cutting ordinance. It was introduced by Supervisor Gibbs. 
who stated that it was necessary to resort to this mode of 
treatment to compel the payment of the fines imposed 
upon the Chinese, and for that purpose it was passed by a 
vote of ten to two, and approved by the then mayor. It 
was l)eheved that the dread of the loss of his queue would 
compel every Chinaman to pay the fine rather than to go 
to jail. 

Utuler this ordinance, a Chinaman, by the name of Ah 
Ivow, was sentenced to pay a fine of ten dollars, and in de- 
fault to be imprisoned in the county jail. Faihng to pay 
liis fine, he was arrested, and on being taken to the jail 
the Sherifi' cut ofl" his queue. 

For this treatment he sued the Sherifi", setting forth his 
conviction under the act of the Legislature, and the treat- 
ment to which he was subjected, and the injury and sufier- 
ing he had endured, and asked damages. To this com- 
plaint the Sherifi' answered justifying his act under the 
ordinance of the city. To this answer the plaintifl' demur- 
red. The particulars of the complaint and answer are 
more fully stated in the opinion delivered by Judge Field 
in overruhng tlie demurrer, which is as follows : 

"Ah Kow vs. Noonan. 

" The plaintiff is a subject of the Emperor of China, and the present 
action is brought to recover damages for his alleged maltreatment by 
the defendant, a citizen of the State of California and the Sheriff of the 
city and county of San Francisco. The maltreatment consisted in liav- 
ing wantonly and maliciously cut off the queue of the plaintiff, a queue 



899 

being worn by :ill Chinamen, and its deprivation boinji; ro-iardcd by tlieni 
as degrading and as entailing fnture sntTering. 

"It appears that in April, 1870, the Legislatnre of California passed an 
act 'concerning lodging-honses and sleeping-apartments within the limits 
of incorporated cities,' declaring, among other things, that any person 
found sleeping or lodging in a room or an aiKutraent containing less than 
live hundred cubic feet of space in the eh ar for each person occupying 
it, should be deemed guilty of a misdemeanor, and on conviction thereof 
be punished by a line of not less than ten or more than fifty dollars, or 
imprisonment in the county jail, or by both such fine and imprisonment* 
Under this act the plaintilf, in April, 1876, was convicted and sentenced 
to pay a fine of ten dollars, or in default of such payment to be impris- 
oned five days in the county jail. Failing to pay the fine, he was im- 
prisoned. The defendant, as sherift' of the city and county, had charge 
of the jail, and during the imprisonment of the plaintiff cut off his 
queue, as alleged. The complainant avers, that it is the custom of China- 
men to shave the hair from the front of the head and to wear the re- 
mainder of it braided into a queue; that the deprivation of the queue is 
regarded by them as a mark of disgrace, and is attended, according to 
their religious tiiith, with misfortune and suffering after death ; that the 
defendant knew of this custom and religious faith of the Chinese, and 
knew also that the plaintitf venerated the custom and held the 
faith ;t yet, in disregard of his rights, inflicted the injury complained of; 
and that the plaintitf has, in consequence of it, suffered great mental 
anguish, been disgraced in the eyes of his friends and relatives, and 
ostracised from association with his countrymen ; and that hence he has 
been damaged to the amount of 1^10,000. 

" Two defences to the action are set up by the defendant ; the second 
one being a justification of his conduct under an ordinance of the city 
and county of San Francisco. It is upon the sufficiency of the latter de- 
fence that the case is before us. The ordinance referred to was passed 
on the 14th day of June, 1876, and it declares that every male person 
imprisoned in the county jail, under the judgment of any Court having 
jurisdiction in criminal cases in the city and county, shall immediately 
upon his arrival at the jail have the hair of his head ' cut or clipped to 
an uniform length of one inch from the scalp thereof,' and it is made the 
duty of the sheriff' to have this provision enforced. Under this ordinance 
the defendant cut off" the queue of the plaintiff'. 



* Session Laws of 1875-6, p. 759. 

f It has been suggested that this averment of the complaint is not in 
point of fact strictly accurate ; and that, according to the belief of the 
Chinamen, the loss of the queue is only evidence of previous bad charac- 
ter, and as such mny aff'ect his future condition, not necessarily. It is 
not perceived that this statement, if correct, alters in any respect the 
argument of the opinion. The loss of his queue is the cause of reproach 
and degradation to him. 



4(H) 

■' Tlie Viilidity of this ordinance is ilonitd ))y tlic plainlitV on two 
jiToiinds: 1st, that it exceeds the authority of the Board of Supervisors, 
the body in which the legislative power of the city and county is vested ; 
and 2d, that it is special legislation imposing a degrading and cruel pun- 
ishment upon a class of persons who are entitled, alike with all other 
persons within the jurisdiction of the United States, to the equal protec- 
tion of the laws. We are of the opinion that both of these positions are 
well taken. 

" The Board of Supervisors is limited in its aiithority by the act con- 
solidating the government of the city and county. It can do nothing un- 
less warrant be found for it there, or in a subsequent statute of the State. 
As with all other municipal bodies, its charter — here the Consolidation 
Act — is the source and measure of its powers. In looking at this charter, 
we see that the powers of the Board, and the subjects upon which they 
are to operate, are all specified. The Board has no general powers, and 
its special power to determine the tines, forfeitures, and penalties which 
may be incurred, is limited to two classes of cases : 1st, breaches of regula- 
tions established by itself; and 2d, violations of provisions of the Consoli- 
dation Act, where no penalty is provided by law. It can impose no pen- 
alty in any other case ; and when a penalty other than that of fine or for- 
feiture is imposed, it must, by the terms of the act, be in the form of im- 
prisonment. It can take no other form. ' No penalty to be imposed,' is 
the language used, 'shall exceed the amount of one thousand dollars, or 
six months imprisonment, or both.' The mode in which a penalty can 
be inflicted, and the extent of it, are thus limited in defining the power 
of the Board. In their place nothing else can be .substituted. No one, 
for example, would pretend that the Board could, for any breach of a mu- 
nicipal regulation or any violation of the Consolidation Act, declare that 
a man should be deprived of his right to vote, or to testify, or to .sit on a 
jury, or that he should be punished with stripes, or be ducked in a pond, 
or be paraded through the streets, or be seated in a ]iillory, or have liis 
ears cropped, or his head shaved. 

" The cutting ofi' the hair of every male person within an inch of his 
scalp, on his arrival at the jail, was not intended and cannot be main- 
tained as a measure of discipline or as a sanitary regulation. The act l)y 
itself has no tendency to promote discipline, and can only be a measure 
of health in exceptional cases. Had the ordinance contemplated a mere 
sanitary regulation, it would have been limited to such cases and made 
applicable to females as well as to males, and to persons awaiting trial as 
well as to persons under conviction. The close cutting of the hair which 
is practiced upon inmates of the State Penitentiary, like dressing them in 
striped clothing, is partly to distinguish them from others, and thus prevent 
their escape, and facilitate their recapture. They are measures of precau- 
tion, as well as parts of a general system of treatment prescribed by the 
Directors of the Penitentiary under the authority of the State, for parties 
(■onvioted of and imiirisoned for felonies. Nothing nf the kiinl is prescrilwd 



401 

ov would lie tolciatrd with ii'spcct to pcrsoiis (oulincd in ;i ((Hinty jail 
l'orsimi)l(' misdcineanois, most of which arc not of a \<rv uravc character. 
For the discipline or detention of the plaint ilf in this case, who had the 
option ol'iiayin.Li a line often dollars, or of lieiiiL:; iniinisoncd for five days, 
no such clipiiin;^ of the hair was required. It was done to add to the se- 
verity of his punishment. 

'• I!ut even if the procciMlinii' eould he rciiarded as a nu-asure of discip- 
line, or as a sanitary rejiulation, the eonelusion would nut help the de- 
fendant, for the Board of .Supervisors had no authority to prescrihc the 
discipline to which persons convicted under the laws of the State should 
he subjected, or to determine what special sanitary regulations should be 
enforced with respect to their persons. That is a matter which the Leg- 
islature had not seen tit to intrust to the wisdom and judgment of that 
body. It is to the Board of Health of the city and county that a gen- 
eral supervision of all matters appertaining to the sanitary condition of 
the county jail is conlided ; and only in exceptional cases would the pre- 
servation of the health of the institution require the cutting of the hair 
of any of its inmates within an inch of his scalp.* The claim, however, 
put forth, that the measure was prescribed as one of health, is noto- 
riously a mere pretence. A treatment to which disgrace is attached, and 
wliich is not adopted as a means of security against the escape of the 
ijrisoner, but merely to aggravate the severity of his confinement, can 
only be regarded as a punishment additional to that fixed by the sen- 
tence. If adopted in consequence of the sentence, it is punishment in 
addition to that imposed by the Court ; if adopted without regard to the 
sentence, it is wanton cruelty. 

"In the present case the plaintiff was not convicted of any breach of 
a municipal regulation, nor of violating any provision of the con.solida- 
tion act. The punishment which the Supervisors undertook to add to 
the fine imposed by the Court was without semblance of authority. The 
Legislature had not conferred upon them the right to change or add to 
the puni.shments which it deemed sufficient for offences; nor had it be- 
stowed upon them the right to impose in any case a punishment of the 
character inflicted in this case. They could no more direct that the queue 
of the plaintiff should be cut off" than that the jjunishments nu'ntioned 
should be ijiflieted. Nor could they order the hair of any one, Mongo- 
lian or other person, to be clipped within an inch of his scalp. That 
measure was beyond their power. 

" The .second objection to the ordinance in question is ecjually conclu- 
sive. It is special legislation, on the part of the Supervi.sors, against a 
class of persons who, under the Constitution and laws of the United 
States, are entitled to the equal protection of the laws. The ordinance 
was intended only for the Chinese in San Francisco. This was avowed 
by the Supervisors on its passage, and was so understood l)y every one. 

*.'\et of .\pril 4, 1870; Session Laws of lS()9-70, p. 717. 



402 

The ordiiiixnce is known in the commnnity as the 'Queue Ordinance,' 
being so designated from its purpose to reach the queues of the Chinese, 
and it is not enforced against any other persons. The reason advanced 
for its adoption, and now urged for its continuance, is that only the dread 
of the loss of his queue will induce a Chinaman to pay his fine. That 
is to say, in order to enforce the payment of a fine imposed upon him, it 
is necessary that torture should be superadded to imprisonment. Then, 
it is said, the Chinaman will not accept the alternative, which the law 
allows, of working out his fine by imprisonment, and the State or county 
will be saved the expense of keeping him during his imprisonment. 
Probably the bastinado, or the knout, or the thumbscrew, or the rack, 
would accomplish the same end ; and no doubt the Chinaman would pre- 
fer either of these modes of torture to that which entails upon him dis- 
grace among his countrymen and carries with it the constant dread of 
misfortune and suffering after death. It is not creditable to the human- 
ity and civilization of our people, much less to their Christianity, that 
an ordinance of this character was possible. 

" The class character of this legislation is none the less manifest be- 
cause of the general terms in which it is expressed. The statements of 
Supervisors in debate on the passage of the ordinance, cannot, it is true, 
be resorted to for the purpose of explaining the meaning of the terms 
used ; but they can be resorted to for the purpose of ascertaining the gen- 
eral object of the legislation proposed, and the mischiefs sought to be 
remedied. Besides, w^e cannot shut our eyes to matters of public noto- 
riety and general cognizance. When we take our seats on the bench we 
are not struck with blindness, and forbidden to know as judges what we 
see as men ; and Avhere an ordinance, though general in its terms, only 
opei-ates upon a special race, sect, or class, it being universally understood 
that it is to be enforced only against that race, sect, or class, we may 
justly conclude that it was the intention of the body adopting it that it 
should only have such operation, and treat it accordingly. We may take 
notice of the limitation given to the general terms of an ordinance by its 
practical construction as a fact in its history, as we do in some cases that 
a law has practically become obsolete. If this were not so, the most im- 
portant provisions of the Constitution, intended for the security of per- 
sonal rights, would, by the general terms of an enactment, often be 
evaded and practically annulled. — {Brown vs. Piper, 1 Otto, 42 ; Ohio Lire 
Ins. and Trust Company vs. Deholt, '[Q How., 435; Scott vs. Sandford, 19 Id., 
407.) The complaint in this case shows that the ordinance acts with 
special severity upon Chinese prisoners, inflicting upon tliem suffering 
altogether disproportionate to Avhat would be endured by other prisoners 
if enforced against them. Upon the Chinese prisoners its enforcement 
operates as ' a cruel and ixnusual punishment.' 

" Many illustrations might be given where ordinances, general in their 
terms, would operate only upon a special class, or upon a class with ex- 
ceptional severity, and thus incur the odium and be subject to the legal 



403 

objection of intended hostile legislation against them. We have, for in- 
stance, in our community, a large number of Jews. They are a highly 
intellectual race, and are generally obedient to the laws of the country. 
But, as is well known, they have peculiar opinions with respect to the use 
of certain articles of food, which they cannot be forced to disregard with- 
out extreme pain and suffering. They look, for example, upon the eat- 
ing of pork with loathing. It is an offence against their religion, and is 
associated in their minds with uucleanness and impurity. Now, if they 
should, in some quarter pf the city, overcrowd their dwellings, and thus 
become amenable, like the Chinese, to the act concerning lodging-houses 
and sleeping-apartments, an ordinance of the Supervisors requiring that 
all prisoners confined in the county jail should be fed on pork, would be 
seen by every one to be leveled at them ; and, notwithstanding its gen- 
eral terms, would be regarded as a special law in its purpose and opera- 
tion. 

" During various periods of English history, legislation, general in its 
character, has often been enacted with the avowed purpose of imposing 
special burdens and restrictions upon Catholics; but that legislation has 
since been regarded as not less odious and obnoxious to animadversion 
than if the j)ersons at whom it was aimed had been particularly desig- 
nated. 

" But, in our country, hostile and discriminating legislation by a State 
against persons of any class, sect, creed, or nation, in whatever form it 
may be expressed, is forbidden by the Fourteenth Amendment of the 
Constitution. That amendment in its first section declares who are citi- 
zens of the United States, and then enacts that no State shall make or 
enforce any law which shall abridge their privileges and immunities. It 
further declares that no State shall deprive any person (dropping the dis- 
tinctive term citizen) of life, liberty, or property, without due process 
of law, nor deny to rt«^ j>erso« the equal protection of the laws. This 
inhibition upon the State applies to all the instrumentalities and agen- 
cies employed in the administration of its government; to its execu- 
tive, legislative, and judicial departments; and to the subordinate legis- 
lative bodies of counties and cities. And the equality of protection thus 
assured to every one whilst within the United States, from whatever 
country he may have come, or of whatever race or color he may be, im- 
plies not only that the Courts of the country shall be open to him on the 
same terms as to all others, for the security of his person or property, 
the prevention or redress of wrongs, and the enforcement of contracts ; 
but that no charges or burdens shall be laid upon him which are not 
equally borne by others, and that in the administration of criminal jus- 
tice he shall suffer for his offences no greater or different punishment. 

" Since the adoption of the Fourteenth Amendment, Congress has leg- 
islated for the purpose of carrying out its provisions in accordance with 
these views. The Revised Statutes, re-enacting provisions of law passed 
in 1870, declare that ' all persons within the jurisdiction of the United 

27 



404 

States shall have the same right in every State and Territory to make 
and enforce contracts, to sue, be parties, give evidence, and to the full 
and equal benefit of all laws and proceedings for the security of persons 
and property, as is enjoyed by white citizens, and shall be subject to like 
punishment, pains, penalties, taxes, licenses, and exactions of every kind, 
and to no other.'' — (Sec. 1,977.) They also declare, that 'every person 
who, under color of any statute, ordinance, regulation, custom, or usage 
of any State or Territory, subjects, or causes to be subjected, any citizen 
of the United States, or o^Aerpfrsow within the. jurisdiction thereof, to 
the deprivation of any rights, privileges, or immunities secured by the 
Constitution and laws, shall be liable to the party injured in an action at 
law, suit in equity, or other proper proceeding for redress.' — (Sec. 1,979.) 

" It is certainly something in which a citizen of the United States may 
feel a generous pride that the government of his country extends protec- 
tion to all persons within its jurisdiction ; and that every blow aimed at 
any of them, however humble, come from what quarter it may, is 
' caught upon the broad shield of our blessed Constitution and our equal 
laws.' * 

" We are aware of the general feeling — amounting to positive hos- 
tility — prevailing in California against the Chinese, which would prevent 
their further immigration hither, and expel from the State those already 
here. Their dissimilarity in physical characteristics, in language, man- 
ners, and religion, would seem, from past experience, to prevent the pos- 
sibility of their assimilation with our people. And thoughtful persons, 
looking at the millions which crowd the opposite shores of the Pacific, 
and the possibility at no distant day of their pouring over in vast hordes 
among us, giving rise to fierce antagonisms of race, hope that some way 
may be devised to prevent their further immigration. We feel the force 
and importance of these considerations ; but the remedy for the appre- 
hended evil is to be sought from the General Government, where, except 
in certain special cases, all power over the subject lies. To that govern- 
ment belong exclusively the treaty-making power, and the power to reg- 
ulate commerce with foreign nations, which includes intercourse as well 
as trafSc, and, with the exceptions presently mentioned, the power to pre- 
scribe the conditions of immigration or importation of persons. The 
State in these particulars, with those exceptions, is powerless, and noth- 
ing is gained by the attempted assertion of a control which can never be 
admitted. The State may exclude from its limits paupers and convicts 
of other countries, persons incurably diseased, and others likely to be- 
come a burden upon its resources. It may, perhaps, also exclude persons 
whose presence would be dangerous to its established institutions. Biat 
there its power ends. Whatever is done by way of exclusion beyond 
this must come from the General Government. That goverment alone 
can determine what aliens shall be permitted to land within the United 

* .Tudge Black's argument in the Fossat Case, 2 Wallace, p. 703, 



40,-) 

Statos, ;nul upon what conditions they sliall bo permitted to remain ; 
whether they shall he restricted in bnsiness transactions to snch as aji- 
pertain to forei<>n commerce, as is practically the case with our people in 
China: or whether they shall be allowed to en<^ageinall pursuits equally 
with citizens. For restrictions necessary or desirable in these matters, 
the appeal must be made to the General Government ; and it is not be- 
lieved that the appeal will ultimately be disregarded. Be that as it may, 
nothing can be accomplished in that direction by hostile and spitelnl 
legislation on the part of the State, or of its municipal bodies, like the 
ordinance in question — legislation which is unworthy of a brave and 
manly people. Against such legislation it will always be the duty of the 
judiciary to declare and enforce the paramount law of the nation. 

"The plaintiflf must have judgment on the demurrer to the defendant's 
plea of justification ; and it is so ordered." 



This decision raised a storm of abuse against its author. 
It seemed as though, for the time, reason had fled from 
the minds of the people of the State. It was not enough 
for them that the Judge was equally opposed to the im- 
migration of Chinese, believing, as he did, that it was not 
wise that persons should be encouraged to come to the 
country who, by their habits, religion, language, and man- 
ners, could not assimilate readily with our people; that 
the presence of such a class would necessarily engender 
enmities and conflicts, disturbing to the peace and injuri- 
ous to the prosperity of the country. They wanted him 
to disregard the Constitution of the United States and the 
provisions of the treaty w'ith China, and hold that the 
State was supreme in all matters aflecting the Chinese. 
It is enough to say that the Judge would have deserved 
the reproach of all good men had lie listened to such wild 
and senseless clamor. 

During the same year a new C'onstitution for the State 
had been adopted. Thp members of the Convention, 
who framed it, had been elected under the excitement 
existing at the time against the Chinese, and they seemed 
to think that all obstacles to the hostile legislation would 
be removed if authority for it was expressed in the organic 
law. Accordingly, tlje instrnnient adopted is filled with 



40(! 

clauses leveled against the people of the hated race, show- 
ing a determination to exclude them from the State at all 
hazards, without regard to treaty stipulations with their 
country or inhibitions of the Constitution of the United 
States. Provisions of various kinds are found in it, ex- 
hibiting ignorance of the plainest doctrines of political 
economy as well as of pubhc and constitutional law. 
Hostility to capital and to the Chinese appears to have 
been the ruHng principle of the Convention, and the ex- 
clusion of both from the State its object — of the former 
by onerous taxation, and of the latter by cutting otf the 
means of livelihood. The Nineteenth Article contained 
the following provision : 

" Section 2. No corporation now existing, or hereafter formed under 
the laws of this State, shall after the adoption of this Constitution em- 
ploy directly or indirectly, in any capacity, any Chinese or Mongolians. 
The Legislature shall pass syeh laws as may be necessary to enforce this 
provision. 

" Section 3. No Chinese shall be employed on any State, county, mu- 
nicipal, or other public work, except in punishment for crime. 

" Section 4. The presence of foreigners ineligible to become citizens of 
the United States is declared to be dangerous to the well-being of this 
State, and the Legislature shall discourage their immigration by all the 
means within its power." 

Under this article the first Legislature which assembled 
under the new Constitution added to the penal code of 
the State the following sections: 

" 178. Any officer, director, manager, member, stockholder, clerk, 
agent, servant, attorney, employ^, assignee, or contractor of any corpora- 
tion now existing, or hereafter formed under the laws of this State, who 
shall employ, in any manner or capacity, upon any work or business of 
such corporation, any Chinese or Mongolian, is guilty of a misdemeanor, 
and is punishable by a fine of not less than one hundred nor more than 
one thousand dollars, or by imprisonment in the county jail of not less 
than fifty nor more than five hundred days, or by both such fine and im- 
prisonment ; Provided, That no director of a corporation shall be deemed 
guilty under this section who refuses to assent to such employment, and 
has such dissent recorded in the minutes of the board of directors. 

" 1. Every person who, having been convicted of violating the provi- 
sions of this section, commits any subsequent violation thereof after such 
conviction, is punishable as follows: 



407 

" 2. For each subsequent conviction such person shall he lined not less 
than five hundred nor more than five thousand dollars, or by imprison- 
ment not less than two hundred and fifty days nor more than two years, 
or by both such fine and imprisonment. 

" 179. Any corporation now existing, or hereafter formed under the 
laws of this State, that shall employ, directly or indirectly, in any ca- 
pacity, any Chinese or IMongolian, shall be guilty of a misdemeanor, and 
upon conviction thereof shall for the first offence be fined not less than 
five hundred nor more than five thousand dollars, and upon the second 
conviction shall, in addition to said penalty, forfeit its charter and fran- 
chise, and all its corporate riglits and privileges, and it shall be the duty 
of the Attorney-General to take the necessary steps to enforce such for- 
feiture." 

As this law went into effect immediately, some corpora- 
tions dissolved, others resisted its enforcement. The presi- 
dent of one of them— the Sulphur Bank Quicksilver Mining 
Company, organized under the laws of the State — was ar- 
rested and held to answer before a State Court, upon a com- 
plaint setting forth the offence of employing in the busi- 
ness of the corporation certain Chinese citizens of the Mon- 
golian race. He thereupon sued out a writ of habeas cor- 
pus in the Circuit Court of the United States. That Court, 
Sawyer, the Circuit Judge, and Hoffman, the District 
Judge, sitting, held the law invalid, and discharged him 
from arrest. Both of the judges delivered very elaborate 
and able opinions. They showed by clear and unanswerable 
reasoning, that the law in question was in conflict with the 
treaty with China and the Fourteenth Amendment of the 
Constitution; that the privileges and immunities pledged 
to the Chinese by the treaty, guaranteed to them the right 
to labor, and to pursue any lawful business equally with 
the subjects of the most favored nation ; and that the power 
to repeal and amend acts of incorporation, reserved to 
the Legislature by the Constitution of the State, did not 
authorize it to require corporations to exclude from em- 
ployment persons who were thus protected by treaty stip- 
ulations. As said by Judge Hoffhian, if the provisions 
of the law were enforced, a bank or a railroad company 
would " lose the right to employ a Chinese interpreter 



4()S 

to ciiablo it to coiimiiiniciite witli Chinese with wlioiii it 
does business. A hospital association would be unable to 
employ a Chinese servant to make known, or to minister 
to, the wants of a Chinese patient, and even a society for 
the conversion of the heathen would not be allowed to 
employ a Chinese con vert to interpret the gospel to Chinese 
neophytes." 

The judge was of opinion that the legislation, under the 
guise of amendment or alteration, was merely an attempt 
to drive the Chinese from the State by preventing them 
from laboring for their livelihood, and he thought that no 
enumeration would " be attempted, of the privileges, im- 
munities, and exemptions of the most favored nation, or 
even of man in civilized society, which would exclude the 
right to labor for a living." 

" It is as inviolable," he added, " as the riglit of propert}^ 
for property is the offspring of labor. It is as sacred as 
the i"ight to life, for life is taken if the means whereby we 
live be taken. Had the labor of the Irish or Germans 
been similarly proscribed, the legislation would have en- 
countered a storm of just indignation. The right of per- 
sons of those or other nationalities, to support themselves 
by their labor, stands on no other or higher ground than 
of the Chinese. The latter have even the additional ad- 
vantage afforded by the express and solemn pledge of the 
ISTation." 

The judge concluded his opinion by observing, what 
was generally felt to be true, " that the unrestricted inmii- 
gration of the Chinese to this country is a great and grow- 
ing evil. That it presses with much severity on the labor- 
ing classes, and that if allowed to continue in numbers 
bearing any considerable proportion to that of the teem- 
ing population of the Chinese Empire, it will be a menace 
to our peace and even to our civilization, is an opinion 
entertained by most thoughtful persons. The demand, 
therefore, that the treat v shall be rescinded or modified is 



4or> 

reasoiiiiblc and legitimate."* " But," lie added, " while 
that treaty exists, the Chinese liave the same rights of 
immigration and residence as are possessed by any other 
foreigners. Those rights it is the duty of Courts to main- 
tain and of the Government to enforce." 

The opinion of Judge Sawyer was equally clear and 
emphatic in its condemnation of the law of the State. 
Both opinions will appear in 6th Sawyer's Reports under 
the title of the case, " In Re Tiburcio Parrott, on Habeas 
Corpus." 

Nothing could better exhibit the unreasonable character 
of the legislation of the State than the illustration above 
given. It was the oii'spring of ignorance, and of a spite- 
fulness which always over-leaps its mark and defeats 
itself. 



Other Cases in the Circuit Court. 

A great many other cases of interest have been decided 
by the Circuit Court whilst Judge Field presided, but only 
a few of them have been reported. In much the larger 
number merely an oral opinion has been given by him, 
briefly recapitulating the grounds of the decision. Of the 
reported cases, other than those from which the quotations 
above are made, the following may be named as the most 
important : 

Central Pacific Railroad Co. vs. Dyer, 1 Sawyer, 643. 

Cole Silver Mining Co. vs. V'irginia k Gold Hill Mining 
Co., 1 Ibid., 685. 

Galpin vs. Page, 3 Ibid., 93. 

Patterson vs. Tatum, 3 Ibid., 164. 



* The treaty with China has since been modified, so as to admit of 
leo-islation by Congress restricting tlie immigration of Cliinese to this 
country. The power which Congress always possessed can now be exer- 
cised without a breach of the treaty. 



410 

Lei-oy vs. Janiison, 3 Ibid., 370. 

Leroy V8. Wright, 4 Ibid., 530. 

Norton vs. Meador, 4 Ibid., 603. 

Gray vs. Lammore, 4 Ibid., 638. 

United States vs. Hare, 4 Ibid., 653. 

Nicholson Pavement Co. vs. Hatch, 4 Ibid., 692. 

Grisar vs. McDowell, 4 Ibid., 597. 

Gimray vs. Culverson, 5 Ibid., 605. 

The Ship Harriman, 5 Ibid., 611. 

United States vs. Outerbridge, 5 Ibid., 620. 

In Re Frank McCoppin, 5 Ibid., 630. 



411 



THE ELECTORAL COMMISSION OF 18; 



Any notice of the judicial labors of Justice Field would 
l)e incomplete which failed to include his action as a 
member of the Electoral Commission created for count- 
ing the Presidential vote of 1876. Although the history 
of that memorable tribunal, and the circumstances which 
led to its creation, are probably familiar to most readers, 
it may not be amiss briefly to recapitulate them. 

On the morning of the Presidential election held ITo- 
vember 7th, 1876, it was announced and generally con- 
ceded that Samuel J. Tilden, the Democratic candidate, had 
secured a majority of the Electoral College. The total 
number of electors composing it was 369, of whom 203 
favorable to him, and 166 favorable to the Republican- 
candidate, Rutherford B. Hayes, had received a majority 
of the popular vote of their States. In the number for 
Mr. Tilden, however, were included four electors from 
Florida, eight from Louisiana, and seven from South Caro- 
lina. If these nineteen votes could be taken from Mr. 
Tilden's column and added to that of Mr. Hayes, the lat- 
ter would have a majority of one. Some of the leaders 
of the Republican party, therefore, determined to originate 
a contest in these States, for which peculiar facilities were 

*This article was prepared by John T. Doyle, Esq., of San Fran- 
cisco, a distinguished member of the Bar of California. In the note on 
page 259, there is a mistake in designating the Commission as of 1876. 
It was created by the act of Congress approved .January 29th, 1877. 



412 

attbrded by the fact that in them the canvassing of the 
votes and dechxration of the result were contided to " re- 
turning boards," a majority of whose members were not 
only of the same party, bat were political adventurers, 
wholly without character. On the other hand, among the 
electors chosen in the States, wdiich had been fairly car- 
ried by the Republicans, there were several who, by hold- 
ing a Federal office, or otherwise, were ineligible for the 
position. So that the slenderness of the majority for Mr. 
Hayes (even supposing his partisans successful in their ef- 
fort to count for him the votes of the returning-board 
States) rendered it necessary for them to retain also the 
votes of all these ineligible electors. The Democrats, 
therefore, in turn, contested the election of the latter. 

When the movements of the Kepublican leaders iirst 
intimated a design to attempt to count the votes of the 
returning-board States for their candidate, in the face of 
notorious popular majorities, people refused to credit the 
suggestion. The rumors on the subject were, by most 
persons, regarded as merely sensational, and intended at 
most to effect some other purpose. But when President 
Grant invited a large number of prominent Republicans 
to visit those States, and act as voluntary Supervisors of 
the count; when these gentlemen, all pronounced parti- 
sans of the Republican candidate, took upon themselves 
this supervision, and in carrying it out refused to act in 
concert wdth a committee of citizens equally distinguished, 
chosen by their opponents; and when they, with a single 
exception, gave their countenance and sanction to flagrant 
violations of the local law by the returning boards, it be- 
came too clear to doubt that an attempt was to be made 
to overrule the popular vote, and by means of fraudulent 
devices, to confer the Presidency on a candidate who had 
been defeated at the polls. The success of such a scheme 
did indeed at first appear incredible, and most persons 
looked forward to seeing justice attained by the ordinary 
processes. But meantime the returning boards went on, 



418 

niul, al'tcr Narious preliiuinary violations ol' law, proe-ecdcd 
by methods now coucetlcd by their own partisans to be 
wholly illegal and indefensible, to consummate the crime 
of certifying the election of all the defeated candidates. 

The electors actually chosen, but counted out hy this 
process, however, met and voted as required by law, and 
ti-ansmitted certiticates of their votes to the President of 
the Senate in Washington, in proper form. In the lie- 
publican States where the Democrats claimed the defeat 
of particular electors on tlie ground of ineligibihty, pro- 
ceedings were also taken to question their votes, and thus 
the final count of the electoral vote and the ascertainment 
of the result of the election presented a series of judicial 
questions, the determination of each one of which vitally 
ati'ected the result. If every question were decided in 
favor of the Republicans they had the Presidency by a 
majority of one electoral vote. The decision of a single 
point against them was fatal to their pretensions. 

What tribunal was to decide these tremendous issues ? 
Quis taut IS conponcre litcsf 

The constitutional provision on the subject was ex- 
tremely meagre. " The. President of the Semde shall, in 
' presence of the Senate and House of RepreseyUatives, open. 
' all the certificates, and the votes shall then be counted.'" And 
there was no statute nor even a joint rule of the two 
Houses [)roviding how the count was to be made or how 
any disputed question which arose on it should be deter- 
mined. The Repul)licans put forward the claim that the 
President of the Senate alone had the power to determine 
what were and what were not the genuine electoral votes, 
and so, practically, to judge the whole question. The other 
side contended that the tw^o Houses of Congress were to 
count, and that, therefore, the assent of both was neces- 
sary to the recognition of each vote claimed. The whole 
countr}^ became excited on the question, and the news- 
papers teemed with discussions of it. The records of all 
previous Presidential counts were ransacked and every 



414 

precedent quoted; but none could be claimed us decisive, 
for the contest itself was without precedent. 

The House of Representatives was Democratic both nu- 
merically and on a count by States. On a failure to elect 
by the Colleges it would, undoubtedly, have chosen Mr. 
Tilden. But the Congress was to expire and the House 
be dissolved on the fourth of March, and the new House, 
though similarly constituted, would not assemble until the 
following December. Meantime the Senate and all the 
Executive Departments, which were permanent bodies, 
were in the hands of the Republicans, and the Senate 
would doubtless elect, and the Executive Departments 
recognize, Mr. Hayes. The outgoing President was ex- 
pected to do all in his power to confirm the claim by in- 
ducting him into otiice and turning over to him all the 
machinery of the Executive Government. He would thus 
become President de facto with a claimant dejure opposed, 
and no tribunal to decide between them, no law applica- 
ble to the case, and to all appearances no appeal possible 
except to the sword. 

People stood aghast at the magnitude of the peril be- 
fore them. Treason in its worst form, not only to tlie Re- 
public, but to all Republican government, menaced the 
very life of the Nation. The public excitement became 
intense; rage and indignation took possession of men's 
minds, and projects for resisting fraud by violence, and of 
arming large bodies of men to march on Washington and 
insist on a fair count b}' the two Houses of Congress, w^ere 
freely canvassed. The President, on the other hand, con- 
centrated a military force at the Capital, and civil war in 
its worst form seemed imminent;— not section against sec- 
tion, nor State against State, but neighbor against neigh- 
bor, throughout every State, county, and village in the 
land. 

Under these circumstances a Joint Committee of the 
Senate and House of Representatives devised, and on 
January 29th, 1877, Congress passed a bill creating a com- 



415 



mission of lifteeii members, — iive Senators, live Represen- 
tatives, and five Judges of the Supreme Court, — to whose 
adjudication the whole subject was committed. Justice 
Field was selected as one of the last-named members.* 

It is not deemed necessar}' to detail the particulars of 
the points of contest in each of the cases submitted. They 
can be sufficiently gathered from the extracts winch we 
make from his opinions. 



The Florida Case. 

The frauds practiced in Florida consisted in substituting, 
for the returns of certain counties regularly made up by 
the proper officers in conformity with the votes legally 
cast, other returns subsequently prepared by different 
officers, in which a sufficient nundier of the votes were 
thrown out to change the result in the State. A state- 
ment of the proceedings in one of the counties — Baker 
County — will show how the frauds were perpetrated. 

By the laws of the State, the counties were divided into 
polling precincts, and the votes of those precincts were to 
be returned to the county clerk, at the county seats, where 
they were to be canvassed; and the county canvassers, 
w^ere to certify the result to the State canvassers. The 
county canvassers were, by law, the county judge, the 
county clerk, (or clerk of the circuit court of the county,) 



* Justice Field had always expressed the opinion that it was the duty 
of the two Houses of Congress to meet in joint convention and count 
the votes, and if they could not agree upon the votes to be received, so 
as to be able to declare who were elected President and Vice-President, 
the duty would then devolve upon the House of Kepresentatives to elect 
the President, and upon the Senate to elect the Vice-President. He 
did not, therefore, believe in the necessity of any commission, but was 
willing to act as one of its members, not doubting, for a moment, that 
it would go behind the certificates issued by the Governors of the disputed 
States, and determine, not who had received them, for that was apparent 
on their face, but who were entitled, as electors, to receive them. 



41(1 

and a justice of the peace, to be called in by them i'ortheii" 
assistance. Incase either the judge or clerk was absent, 
or could not attend, the sheritt' of the county was to be 
called in his place. The law provided that the canvass 
by the county canvassers should be on the sixth day after 
the election, or sooner, if the returns were all received. 

In Baker County there were but four precincts, and the 
returns were all received in three days. On the 10th of 
is"oveniber the county clerk, considering that the returns 
were in, and that further delay in the canvass might be 
embarrassing, requested the county judge to join in the 
canvass. The county judge refused. The clerk then asked 
the sheriif, but he declined. The clerk then called to his 
assistance a justice of the peace, and made the canvass, 
wdiich was a correct one. But it so happened that the 
county judge, on the same day — the 10th — issued a notice 
to the county clerk, and to a justice of the peace, to attend 
him at the county seat on the 13th, for the purpose of 
making the count. On that day and at the hour named, 
the county clerk and the justice of the peace, thus re- 
quested, attended. The county judge, however, absented 
himself. He was invited and urged to go on with the 
canvass, but he declined to attend. The sherift" was then 
applied to, and he refused. Thei'eupon the county clerk 
and a justice of the peace recanvassed the votes, giving 
the same result as in the first canvass, and so certified the 
same to the State canvassers, stating in their certificate the 
reasons why neither the county judge nor the sheritf was 
present. The office of the clerk was then closed for the 
day. On the evening of that day, the same county judge 
and the same sheritf, taki)ig to their assistance a justice of 
the peace who had been commissioned on the 10th by the 
Governor, and who had never acted before, entered the 
office surreptitiously, opened a drawer and took out the re- 
turns, threw aside two precincts, and certified the two re- 
maining, and sent the certificate to the State canvassers. 
This was done without anv evidence wdiatevei* of anv ille- 



417 

gality or irregularity in the election in either of those 
precincts. The deposition of the sherifl", on the suhject, 
was taken; and he testitied that no evidence was before 
tlieni; that one pei'son had stated that lie had l)een pre- 
vented at one of the precincts from \-oting, hnt gave no 
proof of it; and as to tlie other precinct, they merely be- 
lieved that some illegal votes had been given, but of that 
no proof was ottered to them. 

When the State canvassers met the}' amended the can- 
vass by counting the returns from all the precincts, thus 
maldng the certiiicate conform to the actual vote cast. 
But they eliminated from the returns of other counties a 
suthcient number to equal what was thus returned by the 
ti'ue certificate of Baker County, and enough to give the 
State to the Hayes electors. At that time Stearns and 
Drew were candidates for the ottice of governor of the 
State, and Drew contested the legality of this action, so 
far as he was concerned. The Supreme Court of the 
State, before which the question was carried, held that the 
canvassers had no right to eliminate the votes from the 
other counties; that their duty was ministerial, wliich was 
to count the votes properly returned. The result gave 
Drew the office of governor. The State canvassers, see- 
ing this result, recalled their amendment of the Baker 
County canvass, and adopted the false certificate as re- 
turned with the two precincts omitted. This was done, 
as without it tlie convass showed a majority for the elec- 
tors of Mr. Tilden. 

The action of the Courts and of the Legislature of the 
State, to correct the fraud tlius perpetrated by the can- 
vassers, will appear in the argument, given below, of Jus- 
tice Field. 

When the original certificate was before the Commis- 
sion for examination, it was contended that Congress 
had no right to go behind it and count the votes of the 
electors actually chosen, and upon this question Justice 
Field said as follows: 



418 

" Mr. President : . . . . 

" The main question submitted to us, the one to wliich all other in- 
quiries are subordinate, is, whom has the State of Florida appointed as 
electors to cast her vote for President and Vice-President ? The Electoral 
Act, under which we are sitting, makes it our duty to decide ' how many 
and what persons were duly appointed electors ' in that State. 

" The Constitution declares that each State shall appoint electors ' in 
such manner as the Legislature thereof may direct.' It fixes the num- 
ber to be appointed, which is to be equal to the whole number of Sen- 
ators and Kepresentatives to which the State may be entitled in Con- 
gress. It declares Avho shall not be appointed ; that is, no Senator or 
Representative, or person holding an office of trust or profit under the 
United States. With the exceptiou of these provisions as to the num- 
ber of electors and the ineligibility of certain persons, the power of choice 
on the part of the State is unrestricted. The manner of appointment is 
left entirely to its Legislature. 

" What, then, was the manner of appointment directed by the Legisla- 
ture of Florida ? This is manifestly a proper subject for our inquiry, 
for if another and different manner from that directed by the Legislature 
has been followed in the appointment of persons as electors, such persons 
are not ' duly appointed ' in the State, and we must so decide. Any sub- 
stantial departure from the manner prescribed must necessarily vitiate 
the whole proceeding. If, for example, the appointment of electors 
should be made by the Governor of a State, when its Legislature had di- 
rected that they should be chosen by the qualified voters at a general 
election, the appointment would be clearly invalid and have to be re- 
jected.- So, too, if the Legislature should prescribe that the appointment 
should be made by a majority of the votes cast at such election, and tlie 
canvassers, or other officers of election, should declare as elected those 
who had received only a plurality or a minority of the votes, or the 
votes of a portion only of the State, the declaration would be equally in- 
valid as not conforming to the legislative direction ; and the appoint- 
ment of the parties thus declared elected could only be treated as a 
nullity. 

" In inquiring whether the manner prescribed by the State has been 
followed, we do not trench upon any authority of the State, or question 
in any respect her absolute right over the subject, but, on the contrary, 
we seek only to give effect to her will and ascertain the appointment she 
has actually made. « 

" What, then, was the manner directed by the Legislature of Florida ? 
It was by popular election. It was by the choice of a majority of the 
qualified voters of the State. When their votes were cast on the 7th of 
November, the electors were appointed, and all that remained was to as- 
certain and declare the result. The appointment was then completed, 
and could not afterward be changed. What subsequently was required 
of the officers of election and canvassing-boards was an authentic dec- 
laration of the result." 



411) 

Justice Field then proceeded to show that the duty of 
the State canvassei-s of Flori(hi was ininisterial and not 
judicial — so decided hy the Su[U'cnic Court of the State, 
quoting from its ojiinion to that etiect; that it was their 
duty to certify the I'esult shown hy the returns from the 
county canvassers; and that, accordinn' to such rctui'us, 
the certificates of the State hoard should luive been given 
to the Tilden electors, and not to the JIayes electors. 
And, as to the objection taken, that the certificates issued 
by the Governor of the State to the Hayes electors, upon 
the result found hy the board of canvassers, w^as the only 
evidence which the Commission could receive of the ap- 
pointment of electors, he said as toUows: 

" The Constitution docs not prescribe the evidence which shall be re- 
ceived of the appointment. That ouly provides for the voting of the 
electors, and the transmission by them of a list of the persons voted for, 
to the seat of government, directed to the President of the Senate. Con- 
gress has, therefore, enacted that the Governor shall issue a certified list 
of the electors to them before the time fixed for their meeting. The lan- 
guage of the act is that ' It shall be the duty of the executive of each 
State to cause three lists of the names of tlie electors of such State to be 
made and certified, and to be delivered to the electors of such State on or 
before the day on which they are required by the previous section to 
meet.' — (Revised Statutes, sec. 136.) 

•' There is nothing in this act which declares that the certificate thus 
issued shall be conclusive of the appointment. It does not say that the 
evidence tlius furnished is indispensable, or that other evidence of the 
appointment may not be received. Its only object was simply to provide 
convenient evidence of the appointment for the consideration of the two 
Houses of Congress when called upon to count the votes. It was not its 
purpose to control their judgment in deciding between different sets of 
papers purporting to contain the votes of the State. A compliance with 
the act is not obligatory upon the executive of the State. He is not in 
that respect subject to the control of Congress. He could not be com- 
pelled to give the certificate, nor could he be subject to any punishment 
for refusal to act in the matter. And certainly, when Congress can fur- 
nish no means to control the action of a State officer, it cannot render his • 
action either indispensable or conclusive of the rights of the State. In- 
stances may be readily imagined where, from accident, disability, or sick- 
ness of the Governor, the certified lists could not be obtained, or be ob- 
tained and delivered in time, or, if obtained, might be lost or destroyed 
before delivery. In such cases would there be no remedy ? Would the 

28 



4-J() 

State in such cases lose its vote ? Surely, no one will seriously contend 

I for such a result. Suppose, further^ that the Governor, by mistake or 

I fraud, should deliver certified lists in favor of persons not appointed 
electors; for instance, to persons who had not received a majority of the 
votes cast for those officers, (the persons having such juajority of votes 
being eligible to the office under the Constitution ;) would it be pre- 
tended that the will of the State should be thwarted through the force of 
his certificate? I feel confident that no law3'er in the country would 
hold that the truth could not be shown in such case against the face of 
the certificate ; and I will never believe in the possibility of tliis Com- 
mission so holding until I see its decision to that effect. 

" The truth is, a certificate is only pnmri-facie evidence of the fact cer- 

J tified. Indeed, I venture to assert, without fear of successful contradic- 
tion, that in the absence of positive law declaring its eftect to be other- 
Avise, a certificate of any officer to a fact is never held conclusive on any 
question between third parties; it is always open to rebuttal. There 
are, indeed, cases where a party who had been induced to act upon the 
certificate of a fact may insist that the truth of the certificate shall not 
be denied to his injury, but those cases proceed upon the doctrine of es- 
toppel, which has no application here. The fact here to be ascertained 

/ is, who have been duly appointed electors of the State of Florida, not 
who have the certificates of appointment. It is the election, and not 

/ the certificate, which gives the right to the office. The certificate being 
only evidence, can be overcome by any evidence which is in its nature 
superior. And this is equally true of the certificate issued under the 
law of the State as of the certificate issued under the act of Congress. 
I And it is equally true of the certificate' of the board of canvassers. 
Those officers exercised mere ministerial functions ; they possessed no 
judicial power ; their determination had none of the characteristics or 

I conclusiveness of a judicial proceeding; it has been so decided by the 
Supreme Court of the State. And yet, in the opinion of the distinguished 
Commissioner from Indiana,. [Senator Morton,] and some other Commis- 
sioners from the Senate and House appear to concur with him, the deter- 
mination of those canvassers, as expressed by their certificate, is more 
sacred and binding than the judgment of the highest court of the land, 
incapable of successful attack on any ground whatever. 

"I put, yesterday, to these gentlemen this question: Supposing the 
canvassers had made a mistake in addition in footing up the returns, a 
mistake that changed the result of the election, and acting upon the 

. supposed correctness of the addition they had issued a certificate to 
persons as electors who were not in fact chosen, and such persons had 
met and voted for President and Vice-President and transmitted the 
certificate of their votes to Washington ; and afterwards, befoi-e the 
vote was counted by the two Houses of Congress, the mistake was dis- 
covered — was there no remedy ? The gentlemen answered that there was 
none : that whatever mistakes of the kind mav have been committed 



4-21 

must be eorrocted In'tore the vote w;is east by the eleetors or tliey eould 
not be eorrected at all. If this be sound doctrine, then it follows that 
by a elerical mistake in arithmetical computation a person may be placed 
in tlie Chief JVIagistracy of the nation against the will of the people, and 
the two Houses of Congress ara powerless to prevent tlie wrong. 

■' But the gentlemen do not stop here. I put the I'urMier question to 
them: Supposing the canvassers were Itrihed to alter the returns, and 
thus change the result, or they had entered into a conspiracy to commit 
a fraud of this kind, and in pursuance of the bribery or conspiracy they 
did in fact tamper with and alter the returns, and declare as elected 
])ersons not chosen by the voters, and such persons had voted and trans- 
mitted their vote to the President of the Senate, but before the vote 
was counted the fraud was detected and exposed — was there no remedy ? 
The gentlemen answered, as before, that there was none ; that whatever 
fraud may have existed must be proceeded against and its success de- 
feated before the electors voted ; tliat whatever related to their action 
was then a closed book. If this be sound doctrine, it is the only instance 
in the world where fraud becomes enshrined and sanctified behind a 
certificate of its authors. It is elementary knowledge that fraud vitiates 
all proceedings, even the most solemn ; that no form of words, no amount 
of ceremony, and no solemnity of procedure can shield it from exposure 
and protect its structure from assault and destruction. The doctrine 
asserted here would not be applied to uphold the pettiest business trans- 
action, and I can never believe that the Commission will give to it any 
greater weight in a transaction affecting the Chief Magistracy of the 
nation. 

'• But the gentlemen do not stop here. I put the further question to 
them : Supposing the canvassers were coerced by physical force, by pistols 
presented to their heads, to certify to the election of persons not chosen 
l)y the people, and the persons thus declared elected cast the vote of the 
State — was there no remedy? and the answer was the same as that given 
before. For any wrong, mistake, fraud, or coercion in the action of the 
canvassers, say these gentlemen, the remedy must be applied before the 
electors have voted ; the work of the electors is done when they have 
acted, and there is no power under existing law by which the wrong can 
Ite subsequently righted. 

" The canvass of the votes in Florida was not completed until the morn- 
ing of the day of the meeting of the Electoral College, and within a few 
liours alterwards its vote was cast. To have corrected any mistake or 
fraud during these hours, by any proceeding known to the law, would 
have been impossible. The position of these gentlemen is, therefore, 
that there is no remedy, however great the mistake or crime committed. 
If this be sound doctrine, if the representatives in Congress of forty-two 
millions of people jiossess no power to protect the country from the in- 
stallation of a Chief Magistrate through mistake, fraud, or force, we are 
the only self-governing people in the world held in hopeless bondage at 
the mercy of political jugglers and tricksters. 



" This doctriuo, which seems to me to be as unsound in hxw as it is 
/ shocking in morals, is supported upon the notion that if we are permitted 
to look behind the certificate of the Governor, and of the canvassing- 
board upon which that certificate is founded, we shall open the door to 
an investigation which may not be broughljto a close before the fourth of 
March. The argument is that as the new President is to be installed on 
that day, and the votes of the Electoral Colleges are to be counted in 
February, all inquiry as to the truth of that certificate is forbidden, be- 
cause it may be impracticable to carry the inquiry to a termination in 
time for the installation. This position was taken by counsel before the 
Commission, and presented in every possible form, and was repeated 
yesterday by Commissioners Hoar and Garfield, and dwelt upon by 
them as though it were conclusive of the question. The argument 
amounts only to this, that the difiiculty of exposing in time a mistake 
or fraud of the canvassing-board is a sufficient reason for not attempting 
the exposure at all, and for quietly submitting to the consequent perpe- 
tration of a monstrous wrong. 

"It is true that the machinery for the election of President, devised by 
the framers of the Twelfth Amendment to the Constitution, contemplates 
the induction of the successful candidate into office on the 4th of March, 
and that the office shall not on that day be either vacant or disputed. 
I admit, therefore, to the fullest extent claimed by gentlemen, that no 
proceedings can be permitted which will postpone the counting of the 
votes so as to prevent a declaration within that period of the person 
elected, or a reference of the election to the House of Representatives. 
But this limitation of time, .so fixr from being a reason for submitting to 
a mistake or to a fraud, is a reason for immediate action to correct the 
one and expose the other. Whatever is done to overthrow the imma- 
facie evidence presented by the certificate of the Governor must be com- 
menced, carried forward, and completed, so that the result of the pro- 
ceeding can be considered by the two Houses of Congress when the cer- 
tificates are opened in their presence and the votes are counted. The 
countervailing evidence must be presented iu some authentic form, like 
the judgment of a competent tribunal, or the legislative declaration of a 
State, or the finding of an appropriate committee approved by the House 
appointing it ; and then it will constitute a basis for the action of the 
Houses without delaying their proceedings. If, for example, the certifi- 
cate of the Governor were forged, or designated as electors persons for 
whom no votes were cast, the fiict, if it were desired to ask the action of 
the two Houses upon it in counting the vote, should be presented iu such 
a conclusive form as to be the subject of consideration as a fact found. 
If an investigation is then required to establish the fact alleged, I admit 
that the proceeding cannot be had, except by permission of the two Houses, 
by reason of the delay it would occasion. The two Houses cannot be 
required to stop the count to take testimony and investigate the truth 
of mere allegations; but if the fact of forgerv or falsity has already 



been found by competent authority, and tlie finding is laid before the 
two Houses, the finding would not only he a })roper subject of considera- 
tion by them, but it Avould he their nuinifest duly to act upon tlie find- 
ing, in order that the nation might not he ddVaMded in its choicer of a 
Chief Magistrate. 

" In the view which I take of this subject there would be no great de- 
lay in the counting of the electoral votes if Congress were permitted to 
look behind the action of the Governor or of the canvassing-board ; for 
the facts to be brought to the attention of the two Houses would have 
to be presented in the manner indicated before they could be received 
and acted upon, unless the two Houses should consent that testimony be 
taken at the time. If the fact alleged could be readily established with- 
out seriously delaying the count, it is not probable that testimony upon 
the subject would be refused. For example, testimony would hardly be 
refused as to the ineligibility of an elector, or the constitution of a can- 
vassing-board, or the condition of a State as under military rule at the 
time of the election. But where the fact alleged is one of conflicting 
evidence, and is not susceptible of proof within reasonable limits, then, 
I think, the fact must be presented properly autheuticated, as I have 
stated. 

" Evidence in this form, impeaching the correctness of the certificate of 
the Governor aud canvassing-board, can be furnished by the State or by 
either House of Congress ; by the State, which is interested that it shall 
not be defrauded of its vote in the election ; and by either House of 
Congress, which is interested that the forty-two millions of people 
composing the nation shall not be deprived of the President of their 
choice. 

" In this case the State of Florida has furnished evidence in an au- 
thentic form and conclusive in its character, that the Hayes electors were 
never appointed qnd that the certificate of the Governor aud of the can- 
vassing-board in that respect is false ; and that the Tilden electors were 
duly appointed. It has furnished the declaration of its Legislature in a 
statute affirming such to be the fact, and it has furnished a judicial de- 
termination of its Courts to the same etfect. 

" Soon after the canvass of the State board was closed, and its certifi- 
cate of the result was filed, Mr. Drew, who had been a candidate for the 
office of governor at the same election, against Stearns, the incumbent, ' 
and had been declared defeated by the action of the canvassers in ex- 
cluding votes for him, instituted proceedings by mandamus in the Su- 
preme Court of the State to compel the canvassers to count the votes 
given, as shown by the returns. In his petition for the writ he averred 
that, according to the returns received at the office of the Secretary of 
State, and on file there, a majority of the votes for the office of governor 
were cast for him ; aud charged against the canvassers the same disre- 
gard of the law of the State which is alleged against them in the count 
for the electors. Indeed, their action affected equally the candidates for 



424 

governor and for electors. The canvassers appeared to tlie writ, ajid pro- 
ceedings were conducted to a judgment on the merits. The ^ujireme 
Court adjudged that the canvassers had no authority to exclude the 
votes, by which exclusion alone Stearns had been declared elected, and 
directed them to restore the votes. In obedience to this judgment they 
restored the excluded votes, and certified a majority for Drew, who went 
into office and has ever since been the accepted Governor of the State. 
It was the exclusion of the same votes for electors that enabled the can- 
vassers to declare the Hayes electors chosen. In deciding this case the 
court gave a construction to the statute under which the canvassers acted, 
and delivered the opinion from which I have already quoted. 

"As soon as it was known that the canvassers had certified to the elec- 
tion of the Hayes electors, the Tilden electors filed an information in the 
nature of a quo warranto against them in one of the Circuit Courts of the 
State, to determine the validity of their respective claims to the office of 
electors. This proceeding was commenced upon the day on which the 
canvass was completed, and process was served on the Hayes electors 
before they had cast their votes. The Circuit Court had jurisdiction of 
the proceeding by the constitution of the State, the eighth section of 
which provides in terms that the Circuit Court and the judges thereof 
shall have power to issue writs o^ quo warranto. In the information the 
Tilden electors alleged that they were lawfully elected to the olfice of 
electors, and that the Hayes electors were not thus elected, but were 
usurpers. The Hayes electors appeared to the writ, and, first upon de- 
murrer, and afterwards upon an investigation of the facts, their right to 
act as electors was determined. And it was adjudged that the Hayes 
electors were never appointed, and were never entitled to assume and 
exercise the functions of that office, and Avere usurpers; but that the 
Tilden electors were duly appointed at the election on the 7th of Novem- 
ber, and were entitled on the 6th of December to receive certificates of 
election, and on that day and ever since to exercise the powers and per- 
form the duties of that office. It matters not that this judgment was 
not reached until after the Hayes electors had voted ; it was an adjudi- 
cation by a competent court upon the validity of their title as electors 
at the time they assumed to cast the vote of the State. That judgment 
remains in full force ; the appeal from it neither suspends its operation 
nor aff"ects its validity.* It is certainly entitled to great, if not conclu- 
sive, weight upon the subject before' us, especially when considered in 
connection with the action of the Legislature of the State. That action 
seems to me to be conclusive of the case. 

" After the Supreme Court in the Drew proceeding had given a construc- 
tion to the election law, and decided that the canvassers had disregarded 
its plain provisions, exercised judicial functions which they never pos- 
i, and unlawfully rejected votes, the Legislature took steps to have 

* The judgment was subsequently affirmed by the Supreme Court. 



425 

their {'onnt corrected witli respect to the electors, as it had been with 
I'espect to tlie <;overnor. And on the 17th of Jannary hist it passed ' An 
act to i)rovide for a recanvass according to the laws of the State of Florida, 
as interpreted by the Supreme Court, of the votes for electors of Presi- 
dent and Vice-President cast at the election held November 7, 187(5.' 
This act reciuired that the Secretary of State, the Attorney-General, and 
the Comptroller of Public Accounts, or any two of them, together with any 
other member of the Cabinet who might be designated by them, should 
meet forthwith at the office of the Secretary, pursuant to a notice from 
him, and form a board of State canvassers, and proceed to canvass the 
returns of election of electors of President and Vice-President held on 
the 7th of November, and determine and declare who were elected and 
appointed electors at that election, as shown by the returns on file. The 
act directed the canvassers to follow the construction of the law given 
by the Supreme Court defining the powers and duties of state canvassers. 
It directed that their certificate of the result should be recorded in the 
office of the Secretary of State, and a copy be published in one or more 
newspapers printed at the seat of government. The canvassers accord- 
ingly met and made the canvass directed, and certified that the Tilden 
electors, naming them, had received a majority of the votes and were duly 
elected. 

" Subsequent to this, and on the 26th of January, the Legislature passed 
another act in relation to the Tilden electors. That act recited, among 
other things, that — 

" ' Whereas the board of state canvassers constituted under the act ap- 
proved February 27, 1872, did interpret the laws of this State defining the 
powers and duties of the said board in such manner as to give them power 
to exclude certain regular returns, and did in fact under such interpreta- 
tion exclude certain of such regular returns, which said interpretation has 
been adjudged by the Supreme Court to be erroneous and illegal; 

" ' And whereas the late Governor, Marcellus L. Stearns, by reason of 
said illegal action and erroneous and illegal canvass of the said board of 
State canvassers, did erroneously cause to be made and certified lists of 
the names of electors of this State, containing the names of said Charles 
H. Pearce, Frederick C. Humphreys, William H. Holden.and Thomas W. 
Long — 

" The Hayes electors— 

and did deliver such lists to said persons, when in fact the said persons 
had not received the highest number of votes, and, on a canvass conducted 
according to the rules jiicscribed and adjudged as legal by tlu- Sui)reme 
Court, were not appointed as electors, or entitled to receis e such lists from 
the Governor, but Kobert Bullock, Robert B. Hilton, Wilkinson Call, and 
James E. Yonge — 

" The Tilden electors- 
were duly appointed electore, and were entitled to have their names com- 
pose the lists made and certified by the Governor, and to have such lists 
delivered to them : 

" ' Now, therefore, the people of the State of Florida, represented in 
Senate and Assembly, do enact, &c.' 



42<; 

"The act then proceedeii to declare that the Tikleii electors, iianiiug 
them, were on the 7th of November rlul^' chosen and appointed by and 
on behalf of the State of Florida in such manner as the Legislature 
thereof had directed, and were from that day entitled to exercise all the 
powers and duties of the office of electors and had full power and au- 
thority on the 6th of December, 1876, to vote as such electors for Presi- 
dent and Vice-President, and to certify and transmit their votes as pro- 
vided by law. The statute then ratified, confirmed, and declared as 
valid, to all intents and purposes, the acts of such electors. It also au- 
thorized and directed the Governor to make and certify in due form 
and under the seal of the State three lists of the names of the electors, 
and to transmit the same, with an authentic copy of the act, to the 
President of the Senate, and declared that such lists and certificates 
should be as valid and effectual to authenticate in behalf of the State 
the appointment of such electors by the State as if they had been made 
and delivered on or before the 6th of December, 1876, and had been 
transmitted immediately thereafter, and that the lists and certificates 
containing the names of the Hayes electors were illegal and void. The 
act further authorized and directed the Governor to cause three other 
lists of the names of the Tilden electors to be made and certified and 
forthwith delivered to them, and required those electors to meet at the 
Capitol of the State and to make and sign three additional certificates 
of the votes given by them on the 6th of December, to each of which 
should be annexed one of the lists of the electors furnished by the Gov- 
ernor, and that one of the certificates should be transmitted by messen- 
ger, and one by mail, to the President of the Senate, and the third de- 
livered to the judge of the district, as required by law. 

" Pursuant to this act, the Governor of the State made and certified 
three lists of the Tilden electors and delivered the same to them, and 
the said electors assembled and certified that they had met on tlie 6th 
day of December at the Capitol and given their votes as electors for 
President and Vice-President by distinct ballots, the votes for President 
being for Mr. Tilden, and the votes for Vice-President being for Mr. 
Hendricks, and signed three certificates of their action, which were for- 
warded as required by law. The certificates were accompanied by the 
certified lists of the Governor, by a certified copy of the two acts of the 
State, and by a certified copy of the returns on file in the office of the 
Secretary of State, with a tabulated statement annexed showing the re- 
sult of the votes. The third certificate, which is before us, embraces all 
these proceedings. 

"Here, then, we have the highest possible evidence of the action of the 
State of Florida. The two sets of electors both conformed to every re- 
quirement of the law in their proceedings. One set, the Hayes electors, 
have the certificate of Governor Stearns of their election, based upon a 
certificate of the canvassing-board, which in its nature is mere prima- 
facie evidence; the other set, the Tilden electors, have an adjudication 



4:^7 

of a State Court of coniiu'tout jurisdiction, that the}' alone were tlie 
legally -appointed electors. They have the authoritative declaration of 
the Legislature of the State that they alone were entitled to act as elec- 
tors and vote for President on the 6th of December ; and they have a 
certificate of Governor Drew, based upon a recanvass of the votes, that 
they were duly appointed. And accompanying this evidence they have 
a certified copy of the returns, showing that they received a majority of 
the votes cast at the election. 

"Under these circumstances can it be possible that there is any serious 
question as to which of the two sets of electors was (hdi/ appointed / As 
the Legislature was alone authorized to determine the manner in which 
the electors should be appointed, it could furnish in its own way evi- 
dence of their acts as agents of the State, whatever may be the power of 
Congress for its convenience in requiring a certificate of the Governor. 
Were this transaction one that involved merely questions of property 
instead of a matter of great public and political interest, I do not think 
there is a lawyer on this Commission who could hesitate a moment as to 
the conclusive character of the evidence in favor of the Tilden electors. 

" In addition to this action of the State, Congress has moved in the mat- 
ter, and very properly so ; for the entire peo})le are interested in the elec- 
tion of their Chief Magistrate. No other ofTlicer can exercise so great an 
influence for good or for evil upon the whole country. He is not only the 
Commander-in-Chief of our Army and Navy, but he is the executor of 
our laws, the organ of intercourse with foreign nations, the bestower of 
offices of honor and trust, and is charged with the duty of maintaining- 
and defending the Constitution. Of all the obligations resting upon the 
representatives of the people none is greater than that of seeing that no 
one takes that high office with a defective and tainted title. Actino- 
upon this obligation, the House of Representatives early in the session, 
Avhen it was rumored that irregular and fraudulent proceedings had 
characterized the election in some of the States, and in Florida among 
others, appointed committees of investigation to ascertain the facts and 
report who in truth had been appointed electors by those States. One of 
these committees proceeded to Florida, and took there a large amount of 
testimony on the subject, which it has returned to the House with its 
conclusions as to the result. This committee has reported that the Til- 
den electors were duly appointed, concurring in that respect with the ac- 
tion of the State tribunals and the State Legislature. Their report and 
its conclusions, if adopted by the House, would undoubtedly have a con- 
trolling influence upon its action in counting the vote of the State, if 
this Commission had not been created, and for that reason they should be 
received, and if not accepted as final, at least be considered by us.* 

*" The committee presented to the House their report on the 31st of 
January, in which they declared that the evidence was perfectly conclu- 
sive that the State of Florida had cast her vote for the Tiklen"^ electors 



428 

" We are invested with all the powers of the two Houses of Congress 
to ascertain and decide what persons were ' duly appointed ' electors of 
Florida. By the law which has governed legislative hodies from their 
earliest existence, matters upon which they may be called to act can be 
investigated by committees appointed for that purpose. And either 
House may receive the testimony taken by its committee and proceed 
upon that, or accept the finding of its committee as its judgment, and 
act upon that as conclusive. And not until now has it ever been ques- 
tioned that the power of each House to take testimony in that way was 
not as extensive as the subjects upon which it could act. One of the 
gentlemen on this Commission [Mr. Edmunds] introduced into the Sen- 
ate during the present session resolutions for the appointment of commit- 
tees to inquire into the matters which we are now considering, and Sen- 
ators Morton and Frelinghuysen voted for them. One of the resolutions 
authorized the committees to inquire, among other things, ' whether the 
appointment of electors, or those claiming to be such, in any of the States 
has been made by force, fraud, or other means otherwise than in con- 
formity with the Constitution and laws of the United States and the 
laws of the respective States ; ' and in compliance with the resolutions 
the committees have passed weeks in their investigations. It certainly 
provokes surprise and comment to hear these gentlemen now deny that 
either House of Congress has any power to go behind the certificate of 
the Governor and that of the canvassing-board of the State, and to in- 
quire into the matters for which those committees were appointed. 

" It is said that the Hayes electors were de facto officers, and, therefore, 
that their action is to be deemed valid until they are adjudged usurp- 
ers. But they were no more de facto officers than the Tildeu electors. 
Both sets of electors acted at the same time and in the same building. 
The doctrine that the validity of the acts of de facto officers cannot be 
collaterally assailed, and that they are binding until the officers are 
ousted, is usually applied where there is a continuing office, and then 



and they closed with recommending the passage of the following reso- 
lution : 

'^ ' Resolved, That at the election held on November 7th, A. D. 1876, m 
the State of Florida, Wilkinson Call, J. E. Yonge, E. B. Hilton, and Rob- 
ert Bullock were fairly and duly chosen as Presidential electors, and that 
this is shown by the face of the returns, and fully substantiated by the 
evidence of the actual votes cast; and that the said electors having, on 
the first Wednesday of December, A. D. 1876, cast their votes for Samuel 
J. Tilden for President and for Thomas A. Hendricks for Vice-President, 
they are the legal votes of the State of Florida, and must be counted as 

" This resolution was subsequently adopted by the House by a vote of 
142 yeas to 82 nays. 

" The Subcommittee on Privileges and Elections of the Senate also 
made an investigation of the Florida case, and a report which was ad- 
verse in its conclusions to those of the House committee, but the report 
was never adopted by the Senate." 



only on groiinds of public policy. I'rivulc individuals are not called 
upon, and in nio.st cases are not permitted, to incpiire into the title of 
persons clothed with the insignia of public oflice and in apparent pos- 
session of its powers and functions. They are recjuired, for the due 
order and i)eace of society, to respect the acts of such officers, and yield 
obedience to their authority, until in some regular mode provided by 
law their title is determined and they are ousted. As a consequence of 
the respect and obedience thus given, private individuals can claim, in 
all that concerns themselves and the public, for the acts of such officers, 
the same efficacy as though the officers were rightfully clothed with au- 
thority. The doctrine may be applied even to a single act of an officer 
where the office is a continuing one, but it may be doubted whether it is 
applicable to the case of a person simply charged with the performance 
of a single act. In such performance it would seem that the person could 
properly be regarded only as the official agent of the .State, and if, there- 
fore, he was without authority, his act would be void. If the doctrine 
is ever applicable to such a case, it cannot be applied, where the act per- 
Ibrmed has not accomplished its purpose before the want of right in the 
officer to do the act in question is determined. None of the reasons 
upon which the doctrine rests, of policy, convenience, or protection to 
private parties, has any application to a case of this kind. It does not 
seem, theretbre, to me that there is any force in the position." 

Justice Field concluded his ai'gument as follows : 
" Mr. President, I desire that this Coramis.sion should succeed and give 
by its judgment peace to the country. But such a result can only be at- 
tained by disposing of the questions submitted to us on their merits. It 
cannot be attained by a resort to technical subtleties and ingenious de- 
vices to avoid looking at the evidence. It is our duty to ascertain if pos- 
sible the truth, and decide who were in fact duly appointed electors in 
Florida, not merely who had received certificates of such appointment. 
That State has spoken to us through her courts, through her legislature 
and through her executive, and has told us in no ambiguous terms what 
was her will and whom she had appointed to express it. If we shut our 
ears to her utterances, and closing our eyes to the evidence decide this 
case upon the mere inspection of the certificates of the Governor and 
canvassing-board, we shall abdicate our powers, defeat the demands of 
justice, and disappoint the just expectations of the people. The country 
may submit to the result, but it will never cease to regard our action as 
unjust in itself, and as calculated to sap the foundations of public moral- 
ity.'' 

The ('omiiiission by u vote of eight to seven— each 
member voting according to his party predilections — came 
to the amazing conchision — and so decided — that it was 

" not roiiipefepf inider the CoiisfJtutioii (ind t/ie hue, as it existed 



430 

at the date of the passage of the said a.ct [creating the Electoral 
Commission'] to go into evidence aliunde the papers opened by 
the President of the Senate, in the presence of the two Houses, 
to prove that other persons than those regularly certified to by 
the Governor of the State of Florida in, and according to the 
determination and declaration of their appointm.ent by the board 
of State canvassers of said State, prior to the time required for 
the performance of their duties, had been appointed electors, or, 
by counter proof, to show that they had not, and that all proceed- 
ings of the Courts, or acts of the Legislature or of the Executive 
of Florida subsequent to the casting of the votes of the electors 
on the prescribed day, are inadmissible for any such purpose.'" 
This decision gave the vote of FloricLa to Mr. Hayes for 
President, and to Mr. Wheeler for Vice-President. 



The Louisiana Case. 

In the Louisiana case the frauds committed by its re- 
turning-board were astounding. The number of votes 
cast in the State for the Tihlen electors, taking the first 
name on the list as representing all, was 83,723, but the 
certificate of the returning-board put them at 70,508, 
turning Mr. Tilden's majority of more than thirteen thou- 
sand into a majority for Mr. Hayes. This reduction was 
made by throwing out more than 13,000 votes of legal 
voters, which had been cast for Mr. Tilden. More than 
10,000 of these were thrown out upon the assumed au- 
thority of a statute of Louisiana which, in terms, gave 
the board power to throw out votes, upon examination 
and deliberation, " whenever, from any poll or voting- 
place, there should be received the statement of any super- 
visor of registration or commissioner of election, in form, 
as required by section 26 of this act, on affidavit of three 
or more citizens, of any riot, tumult, acts of violence, in- 
timidation, armed disturbance, bribery, or corrupt in- 
fluences, which prevented, or tended to prevent, a fair, 



4.n 

free, and peaceable vole of nil (jualitied electors ciititU-d 
to vote at such pi>ll oi- voting-place." 

The only ground upon which a vote couhl liave been 
thrown out, for intimidation or other corrupt influence, as 
thus seen, was the statement of a sii[»c'rvisor of registration 
or commissioner of election, founded upon the affidavits of 
three citizens. The statements and atHdavits upon which 
the returning-hoard i)retende(l to justify its action, were al- 
leged hy eounsel to he forged and fabrieated by persons 
acting under its direction and with its knowledge; and 
proof of this allegation was ready to be produced, but the 
Commission held it inadmissible. 

Mr. Abbott, a mend:)er of the Commission, otiered the 
following resolution: 

" Eesohed, That evidence is admissible that the statements and affidavits 
purporting to have been made and forwarded to said returning-board in 
pursuance of the provisions of section 26 of the election hiw of 1872, al- 
leging riot, tumult, intimidation, and violence, at or near certain polls, 
and in certain parishes, tvere falsely labricated and forged by certain dis- 
reputable persons under the direction and with the knowledge of said 
returning-board, and that said returning-board, knowing said statements 
and affidavits to be false and forged, and that none of the said statements 
or afhdavits were made in the manner or form or within the time required 
by law, did knowingly, willfully, and fraudulently fail and refuse to can- 
vass or compile more than 10,000 votes lawfully cast, as is shown by the 
statements of votes of the commissioners of election." 

This otter the Commission rejected by a vote of 8 to 7. 

The principles enunciated in his opinion in the Florida 
ease, governed Justice Field's action, also, in that of Lou- 
isiana. In both of the cases he gave his vote in favor of 
the candidates of his party, and unquestionably in favor of 
truth and justice. The Commission by the same vote — 
8 to 7 — came to a result similar to that reached in the 
Florida case, as to the conclusive character of the certifi- 
cates issued by the Governor of the State upon the deter- 
mination of the returning-board. 

Two of tlie persons certified to have been chosen as 
electors held, at the time of the election, offices of profit 



4:!:^ 



under the United States — one being Surveyor-General for 
the District of Louisiana, and the other being Commissioner 
of the Circuit Court of the United States for that District. 
But the Commission held, by a like vote of 8 to 7, that it 
was " not competent to prove that anjj of S'lid per son ft .^o <ip- 
pointed electors as (iforesakl [by the determination of tlie 
returning-board, as cei'tified by the Governor] held (Oi of- 
fice of tniM luid profit n„drr tlie United States at the time 
u'/wn thep were appointed, or tlmt tiiep vere inelif/ihle under the 
Uiirs of the State, or anp other matter offered to be prorcd 
(diuinJe tite said certif rates and papers.''' This was held in 
the face of the constitutional provision declaring " that no 
Senator or Representative, or person holdinr/ an office of trust 
or profit under the United States, shall he appointed an elector.'''' — 
(Art." IL, sec. 1.) 

This decision gave the vote of Louisiana to Mr. Hayes 
for President and to Mr. Wheeler for Vice-President. 



The Oregon Case. 

In the Oregon case the Democi'atic managers claimed 
the election of one of their electors on the ground of the 
constitutional ineligibility of his opponent. Justice Field 
was unable to go with them. The case, in brief, was this: 
Watts, one of the Hayes electors, was constitutionally 
ineligible, as be held at the time of the election an 
office of profit under the United States ; and it was 
claimed by the Democrats that Cronin, who stood highest 
on the poll of the opposite side, was, therefore, legally 
chosen. The Governor of Oregon took this view of the 
case and certified the election of two Republican electors 
.and one Democratic elector. The Republicans, however, 
■claimed that Watts' ineligibility created a vacancy in the 
office which his associates could fill, and he having re- 
signed both his electorship and the Federal office which 
rendej'ed him ineligilile to it, was elected by his col- 



48;} 

U'ii^unu's on the ticket to fill the siijiposcd viicimcv thus 
created. Justice Fii'ld was of oiiinioii that tlic clause of 
the CoMstitutioii deelaiiui;- tlie iiieli^-ibility was absolute 
and sell-operative, hut decliiu'd to admit either of the 
coutlietini'" eonseciueuct's claimed from it , reii'ardini;' the 
east' as simply a failure to elect, lie said: 

" Mu. President: 

" It appears tliat Odell, Watts, and (.'artAvrij>,lit received at the election 
in Oregon, in Noviinlirr last, a higher nuniher of votes for electors of 
President and Vice-President than the candidates against them. Odell 
and Cartwright were accordingly elected ; of that there is no question. 
Watts would also have been elected had he been at the time eligible to 
the oflice. He was then and for some time afterward a postmaster at 
La PXyctte, in the State. The ofiSce he held was one of trust and profit 
under the United States; it imposed trusts, and was one to which a pe- 
cuniary compensation was attached. He was, therefore, ineligible to the 
otHce of an elector ; he was at the time incapable of being appointed to 
that office^ Such is the language of the Constitution, which declares that 
' No Senator or Representative, or person holding an office of trust or 
profit under the United States, shall be appointed an elector.' The pro- 
hibition here made is unqualified and absolute. All the power of ap- 
pointment possessed by the State comes from the Constitution. The of- 
fice of elector is created by that instrument. Her power of selection is, 
therefore, necessarily limited by its terms ; and from her choice the class 
designated is excluded. The object of the exclusion was to prevent the 
use of the patronage of the (Jovernment to prolong the official life of 
those in power. 

'' The clause in question is one that operates by its own force. Like the 
prohibition' against passing an ex post facfo law, or a bill of attainder, 
or a law impairing the obligation of contracts, it executes itself; it re- 
quires no legislation to carry it into effect. As applied to Watts, it must 
be read as if hi.'? name were inserted in the text, and was as follows : 
' The State of Oregon shall appoint, in such manner as the Legislature 
thereof may direct, a number of electors equal to the Avhole number of 
Senators aad Representatives to which the State may be entitled in the 
Congress ; but Watts shall not be appointed one of them.' The power 
to appoint him not existing in the State, the votes cast for him availed 
nothing ; he was incapa])le of receiving them. He was not, therefore, 
appointed the third elector. 

"The provision of the Constitution excluding from the choice of the 
State as electors certain classes of officers is very ditferent from those 
provisions which create a mere personal disqualification to hold particu- 
lar offices. Thus the clause declaring that ' No person shall be a Repre- 
sentative who shall not have attained to the age of tAventy-five years,' 



4:U 

and the clause that ' No person shall be a Senator who shall not have at- 
tained to the age of thirty years,' do not forl)id an election of persons thus 
disqualilied ; they only prohibit them from holding the office so long as 
the disqualification exists. They can take the office whenever that 
ceases. But with respect to electors the case is different. There is an in- 
capacity on the part of the State to appoint as electors certain classes of 
officers. Tliis distinction between ineligibility to an office and disquali- 
fication to hold the office is well marked. The one has reference to the 
time of election or appointment ; the other to the time of taking pos- 
session of the office. The ineligibility existing at the date of the elec- 
tion is incurable afterwards ; the disqualification to hold may be re- 
moved at any time before induction into office. If, therefore, at the time 
of the election persons are within the classes designated, their appoint- 
ment is impossible. The Constitution jirohibits it, and unless the prohi- 
bition is to be frittered away whenever conflicting with the wishes of po- 
litical partisans, it should be enforced equally with the provision fixing 
the number of electors. One clause of the same section cannot be disre- 
garded any more than the other, and surely the appointment of a greater 
number of electors than the State was entitled to have would be a vain 
proceeding. 

" The ineligibility of Watts was a fact known to the Governor. He had 
held the office of postmaster for years, and was in its possession and ex- 
ercise at the time of the election. This was a fact of public notoriety, 
and was not denied by any one. It was asserted by parties who protested 
against the issue of a certificate of election to him, and it was abund- 
antly proved. Besides this, the rule of law is that, whenever the ineligi- 
bility of a candidate arises from his holding a public office within the 
State, the people are chargeable with notice of the fact. The Governor 
is, of course, bound by the Constitution, and whenever the performance 
of a duty devolved upon him is affected by the existence of public offices 
under the United States, he may take notice officially of such offices and 
ascertain who are their incumbents. This is a doctrine which I had not 
supposed open to question. But I find that I am mistaken ; and I am 
told by some gentlemen on this Commission that it was not competent 
for the Governor to consider the question of the ineligibility of the canr 
didate, though made known to him in every possible way ; and that its 
determination involved the exercise of judicial functions, with which he 
was not invested. The general position advanced by them is that the 
duty of the Governor, as a commissioning officer, is to issue his certifi- 
cate of election to any one who may obtain, according to the determina- 
tion of the canvassers, the highest number of votes, however ineligible 
the person, and however imperative the prohibition may be against his 
taking the office. 

" To test this doctrine I put this question to these gentlemen : Suppos- 
ing the law declared that only white persons should be eligible to an of- 
fice, and the highest number of votes, according to the canvassers, should 



4:!.') 

be cast iur ;i coloii'd man, would tlic (JoviTiior be. bound to issue uconi- 
mission to him ? The gentlemen answered that he woukl be thus bound ; 
that the Governor could not iu such case decide the question of the col- 
ored man's ineligibility. Mr. Senator Tlnnniuii ]iut this further ques- 
tion : Supposing the law of the State dcilarcd that only males should be 
elected to aii oliice, and the highest number of votes were cast, accord- 
ing to the report of the canvassers, for a female, would the Governor be 
bound to issue a commission to her? The gentlemen replied, as before, 
that he would be thus bound ; that the Governor could not determine 
the ineligibility of the party on the ground of her sex. There is some- 
thing refreshing in these days of sham and pretence to find men who 
will thus accept the logic of their principles, to whatever result they may 
lead. 

''A different doctrine, I think, prevails in this country. Every depart- 
ment of government, when called upon to apply a provision of the Con- 
stitution, must, in the first instance, pass upon its construction and de- 
termine the extent of its obligation. A. just man empowered to issue a 
certificate of election will, it is true, hesitate to decide on the question 
of the ineligibility of a candidate, where there is any serious doubt on 
the subject, and for that reason to refuse his certificate. He will in such 
a case leave the matter to the determination of the judicial tribunals. 
But where there is no doubt on the subject, and the language of the Con- 
stitution forbidding the appointment is clear and imperative, he cannot, 
without violating his oath of office, disregard its mandate. 

" The law is laid down in numerous adjudications in conformity with 
these views. In the case of the State of Missouri on the relation of Bart- 
lej' against the Governor, which is cited by counsel, (39 Missouri, 399,) 
the doctrine for which I contend is stated with great clearness and pre- 
cision. There a mandamus was prayed against the Governor to compel 
him to issue a commission to the relator as one of the justices of the 
County Court. The Supreme Court refused the writ on the ground tliat 
the issuing of a commission was the exercise of political power, and not 
a mere ministerial act. After reciting that by the Constitution the duty 
devolved upon the Governor to commission all officers not otherwise pro- 
vided by law, the Court said : 

" ' The Governor is bound to see that the laws are faithfully executed, 
and he has taken an oath to support the Constitution. In the correct 
and legitimate performance of his duty he must inevitably have a dis- 
cretion in regard to granting commissions ; for should a person be elected 
or appointed who was constitutionally ineligible to hold any office of 
jn-ofit or trust, would the executive be bound to commission him when 
his ineligibility was clearly and positively proven ? If he is denied the ex- 
ercise of any discretion in such case, he is made the violator of the Con- 
stitution, not its guardian. Of what avail then is his oath of office? Or, 
if he has positive and satisfactory evidence that no election has been held 
in a county, shall he br niiuired to violate the law and issue a commis- 
sion to a per.son not rlictcil, licrause a clerk has certified to the election? 
In granting a commission the (iovernor may go behind the certificate to 

29 



deteniiiur whctlicr an :i])iilie'aiit is entitled to receive ii coimiiissioii or 
not, where tlie objection to the right of the applicant to receive it rests 
upon the gronnd that a constitutional prohibition is interposed.' 

"In Gnlick against New, also cited by counsel, (14 Indiana, 93,) the 
Supreme Court of Indiana used language substantially to the same effect, 
holding that the Governor, who was authorized to commission officers, 
might determine, even against the decision of a board of canvassers, 
whether an applicant was entitled to receive a commission or not, where 
the objection to his right to receive it rested upon a constitutional pro- 
hibition. 

"Other adjudications might be cited, but I believe these express the 
law as recognized generally throughout the country.* The question 
then arises, Watts being ineligible, whether the person receiving the 
next highest number of votes, he being eligible, was elected. Governor 
Grover held that such person was elected and issued a certificate of 
election to him. In his action in this respect he followed the rule which 
obtains in England, where, if the voters having knowledge of the ineli- 
gibility of a candidate persist in voting for him, their votes are consid- 
ered as thrown away, and the eligible candidate receiving the next high- 
est number of votes is declared elected. There are numerous decisions 
by courts of the highest character in this country to the same effect. 
They have been cited to us by counsel in their elaborate arguments, and 

"* In the debate which took place in the Senate on the 10th of Decem- 
ber, 1876, on the electoral vote of Oregon, Senator Thurman replied to 
some renuirks of Senator Morton upon the action of Governor Grover, 
as follows: 

" ' The Senator from Indiana says that the question whether Watts was 
eligible or not was a judicial question, and that the sole duty of the Gov- 
ernor was a ministerial duty, that he had no judicial function whatever, 
that it was, therefore, his duty simply to certify to the person who re- 
ceived the highest number of votes. He states that in the most absolute 
manner. If his statement be correct, then, if, instead of voting for 
Watts, the voters who cast their votes for him had voted for Queen Vic;- 
toria, it would have been theduty of the Governor to issue a certificate of 
election to Her Majesty the Queen that she was chosen elector of Presi- 
dent and Vice-President for the State of Oregon It is very 

true in Oregon, as in every State in the Union and in the Federal 
Government, that there is a department of government which is called 
the judiciary, and another department called the executive, and another 
the legislative, and the constitutions endeavor to partition out the great 
powers of government between these three departments; but does it fol- 
low from that, that no power to judge in any case can be devolved eith er 
upon the legislative department or upon the executive department of the 
government or an executive officer? We could not get along with the 
government one day on such an idea as that. The judicial power which 
the Governor of Oregon cannot exercise, which the Legislature cannot ex- 
ercise; the judicial power that Congress cannot exercise, that the Presi- 
dent cannot exercise, is the power of deciding litigated cases that arise 
in jurisprudence, and is a wholly different thing from the exercise of that 
(juasi-judical jwwer which executive officers are called upon every day to 
exercise and which they must exevcise.' 



4:',7 

ill view (.1' llii'iu :iii hoiii.r.ihl.- ami ci.iisriciit ions iiiaii lui^iht well li:i\ c 
acted as the GovoriiDr did. I'.iit I do not vie Id my assent to them ; they 
are not in harmony with tlie spirit ol' our system of elections. The 
thcmy of our institutions is tliat tii;' majority must govern; and 
tlicir will (iiiii only be carried out liy .giving the offices to those for 
whom they have voted. In accordance, with this view, the w^eigiit oi' 
judicial opinion in this country is, that votes given for au ineligible 
candidate an^ merely inefl^ectual to elect him, and tiiat they are not to 
be thrown ovit as blanks, and the election given to the eligible candidate 
having the ne.\t highest number of votes. It is fairer and more just to 
thus limit the operation of votes fir an im-ligihle candidate thin to give 
them, as said in the California case, 'the elfect of disapii.iiiiliug tlie 
popular will and electing to office a man whose pretensions t!ie jieople 
liad designed to reject.' — (Saunders vs. Hayues, 13 California, 151.) 

'' I cannot, therefore, vote that Cronin, the candidate having the next 
liighest number of votes to Watts, ' was duly appointed ' an elector of 
the State at the election in November. As there was, in my opinion, a 
failure to appoint a third elector, the question arises whether a vacancy 
was thus produced which the other electors could fill. In a general 
sense, an office may bo said to be vacant when it is not filled, though 
this condition arise from non-election, or the death, resignation, or re- 
moval of an incumbent. Cases have been cited bjfore us where the 
term ' vacancy ' is used in both these senses. Bat the question for us 
to decide is whether there was a vacincy within the meaning of the 
legislation of Congress. That legislation distinguishes between cases 
of non-election and cases of vacancy, evidently treating the latter as 
oijly occurring after the office has once been filled. I refer to sections 13:3 
and 134 of the Kevi.sed Statutes, which are as follows: 

"'Sec. 133. Each State may by law provide for the filling of any va- 
cancies which may occur in its College of Electors, when such college meets 
to give its electoral vote. 

" ' Sec. 134. Whenever any State has held an election for the purpos > of 
choosing electors, and has failed to make a choice on the day prescribed 
by law, the electors may be appointed on a subsequent day in such man- 
ner as the Legislature of such State may direct.' 

'• Under this legislation the State of Oregon has provided for filling 
vacancies in its Electoral College, treating, as does Congress, a vacancy as 
arising only after the office has once been filled. Its code of general 
laws declares when vacancies in any offi3e shall be deemed to have oc- 
curred, as follows: 

'"Every office shall become vacant on the occurring of either of the 
following events before the expiration of the term of such othce : 

"'1. The death of the incumbent: 

" ' 2. His resignation ; 

" ' 3. His removal ; 

" ' 4. His ceasing to be an inhabitant of the district, county, town, or 
village for which lie shall have been elected or appointed, or within which 
the duties of liis office are requin^d to be discharged: 



438 

"'5. His conviction of ;in infamous crime, or of any offence involving 
a violation of his oath ; 

" ' 6. His refusal or neglect to take his oath of office, or to give or re- 
new his official bond, or to deposit such oath or bond within the time 
prescribed by law ; 

" ' 7. The decision of a competent tribunal declaring void his election 
or appointment.' — [General Laws of Oregon, page 576, section 48.) 

" On the subject of vacancies in the Electoral College, the same code of 
general laws provides that when the electors convene — 

" ' If there shall be any vacancy in the office of an elector, occasioned 
by death, refusal to act, neglect to attend, or otherwise, the electors pres- 
ent shall immediately proceed to fill, by viva voce and plurality of votes, 
such vacancy in the Electoral College.' — (General Laws of On/gon, page 
578, section 59.) 

" It seems evident from these provisions that there could be no vacancy 
in the office of elector unless the office had once been filled. The events 
upon the occurrence of which the statute declares that a vacancy shall 
occur in any office, all imply the existence of a previous incumbent. 

" The word ' otherwise,' used with respect to a vacancy in the Electoral 
College, does not enlarge the scope of that term. The code having 
enumerated under one title the events upon which a vacancy may arise, 
including death, resignation, and other causes, proceeds to declare, under 
another title of the same chapter, that when a vacancy occurs in the of- 
fice of elector by death, refusal to act, or othenoise, meaning thereby any 
other cause which would remove an incumbent, the electors present may 
fill the vacancy. As here there never had been an incumbent, there could 
be no vacancy, in the sense of the statute, by death or otherwise. 

" The two electors, Odell and Cartwright, undertook to appoint Watts 
as the third elector, upon the assumption that he had resigned the office, 
and that a vacancy was thereby created. But inasmuch as he had never 
been elected, he had nothing to resign. The case was not one of a va- 
cancy, but of a failure to elect ; and the Legislature of the State had 
made no provision for a subsequent election in case of such failure, as it 
might have done under the legislation of Congress." 



It followed from these views that there were only two 
electors duly appointed by Oregon, and that, therefore, 
only two electoral votes from that State could be counted. 

Justice Field offered before the Commission three reso- 
lutions embodying the views thus expressed, but they were 
all rejected by a vote of eight to seven; and by that vote 
the Commission held: " Thai thowjh the evidence shoioed 
that Watts was a postmaster at the time of his election, that fact 
ions rendered immaterial hji his resir/7V/tion both r/s postmaster 



4:i;» 

avd elector and his sahseqaent ('ppoiiitiiiciif /o till the CdiuDn-ii 
made by the Electoral Colle(/c.'' 

Three votes, instead of two. I'loin Orciioii, were, there- 
fore, counted for Mr. Hayes as 1 'resident and for Mr. 
Wlieeler as Vice-I'resident. 



The South Carolina Case. 

The principal objections to the count of the electoral 
vote of South Carolina were, that there had been no reg- 
istration of persons entitled to vote, as required by the 
constitution of the State; that the General Government, 
without authority of law, had stationed, prior to and 
during the election, in various parts of the State, at or 
near the polling places, detachments of the army of tlie 
United States, by whose presence the free exercise of the 
right of suiirage was prevented, and a fair election be- 
came impossible; and that over a thousand deputy mar- 
shals had been stationed at the polling places, who, by 
their arbitrary and illegal action, in obedience to the De- 
partment of Justice, had so intei'fered with the exercise 
of the right of suttVage that a fair election was impossible. 

On the hearing before the Commission proof was ready 
to be produced to establish these objections, but the Com- 
mission ruled it inadmissible. 

Justice Field offered the following resolutions: 

^^Mcsolved, That evidence is admissible to show that prior to and dur- 
ing the election on the 7th day of November, 1876, in the State of South 
Carolina, thei-e were unlawfully stationed in various parts of the State, 
at or near the polling places, detachments of the troops of the army of the 
United States, by whose presence and interference qualified voters of the 
State were deprived of the right of suffrage, and a free choice by the peo- 
ple of Presidential electors was prevented. 

^'Resolved, That evidence is admissible to show that at the election on 
the 7th day of November, 1876, in South Carolina, there were stationed 
at the several polling places deputy marshals of the United States exceed- 
ing one thousand in number, \)y whose unlawful action and interference, 
under orders from the Department of .Justice, qualified voters of the State 
were deprived of the right of suftrage, and a free choice by the people of 
Presidential electors was prevented." 



440 

TIk'sc were ivjected l)_v a vote of eight to seven; and 
till- (/oiiiiiiission resolved l>j a like vote, as i'oUows: 

"That it is not competent foi' the two Houses of (con- 
gress when asseni])led to count the votes for President 
and ^"ice-i'i'esident, by taking evidence, to in([uire into 
the regularity of the action of the President of the Vnited 
States in sending a military foree into any State for the 
preservation of order or the suppression of insurrecti<:)n 
and domestic violence, in order l)y such proof tO lay a 
ground for rejecting the electoral vote of said State;" 
and, also, that tliere existed "-no power in this Commis- 
sion, as there exists none in the two Houses of Congress, 
in counting the electoi'al vote, to inquire into the circum- 
stances under which the primary vote for electors was 
given." 

The vote of South C^arolina was accordingly cast for Mi'. 
Hayes as l^resident and for Mr. Wheeler as Vice-i*resi- 
dent. 

The votes of the four States of Florida, Louisiana, Ore- 
gon, and South Carolina being all counted for these gentle- 
men under the rulings of the Commission, they were de- 
clared l)y Congress elected by a majority of one vote. 

The general disappointment throughout the country at 
the action of the Commission was well expressed in the fol- 
lowing article from the Pitblic Ledr/er and D<n'/i/ Trtinsr-rlpt, 
of Philadelphia, of February 19th, 1877. which appeared 
whilst the Commission was in session, but after its decision 
on the Florida and Louisiana cases. That paper, though 
not a partisan joui'ual, has always been of strong Republi- 
can proclivities : 

" Counting thk P^lectoral V'ote. 

" There is reason for the strong dissatisfaction expressed concerning the 
course of the majority of the Electoral Commission. There is just cause 
for complaint, not because they have awarded the votes of Florida and 
Louisiana to Governor Hayes, but because of their persistent refusal to 
inquire into tlie truth of the certificates Avhich covered those votes. 
Th\i:i far tln-ir in((uirip.-i and their decisions, when reduced to plain terms, 



441 

amount to nothiiij; inorc than this: that Stearns was Governor of Floriila 
on the 6tli of Deci mber hist, and that Kelh)i?g was de fado (iovernor of 
Louisiana on the same date. It did not require the creation of a hifih 
and extraordinary Commission like that now in session to inquire into and 
decide historical facts like these. They were beyond dispute, and were 
not disputed. The Commission was created, under circumstances of the 
utmost solemnity, to inquire and decide whether such certificates as those 
•riven by Stearns and Kellogg did actually certify to the truth, and 
whether the electors named in those certificates were in truth and in law 
the electoi-s who received majorities of the lawful votes of Florida and 
Louisiana. This the majority of the Commission have continuously re- 
fused to do, and taking their stand on bare technicalities, have abdicated 
the very jurisdiction and action they were brought into existence to ex- 
ercise. Without the belief that they would exercise it, the Commission 
could have had no existence. It was that belief that made the appoint- 
ment of the Commission a possibility, and caused its appointment to be 
hailed with welcome and confidence throughout the United States. 

" This is said with profound regret. It is mortifying to be obliged to 
say it in the columns of a journal which was among the foremost in aid- 
ing to create the Commission, and which, in fact, sketched its outlines 
long before the law took shape anywhere else. We certainly understood 
that the Commission was to inquire into the very truth and right of the 
disputed votes in Florida and Louisiana, and that the decision of the 
Commission was to be given upon the merits after that inquiry, and not 
upon bald technicalities. The law gives to the Commission all the powers 
possessed in the premises by the two Houses of Congress, and to take into 
view such evidence as might be competent and pertinent. This portion 
of the law certainly means something; it means precisely what it says, 
and was universally understood to mean that the Commission were to in- 
quire Avhether the papers from Florida and Louisiana, purporting to be 
votes, are in fact votes or false pretences, but 'the majority of the Com- 
mission have treated that part of the law as if it means nothing, by re- 
fusing to make that inquiry. 

" This tribunal was, from the outset, trusted with the patriotic hopes 
and honored with the fullest confidence of three-fourths of the people of 
the United States, in the belief that the solemn circumstances attending 
the necessity and the act that brought it into being, would cause all its 
members (with possibly three exceptions) to rise above all party consid- 
erations in the discharge of their momentous duty. In the light of this 
antecedent hope and confidence, and in view of the votes written on the 
record of the Commission, it is pitiable to ob-serve that every important 
question thus far s,ubraitted to the Commission has divided the Commis- 
sioners, eight to seven, on strict party lines, accordingly as the decision 
would help the case of Governor Hayes, or hurt the case of Governor 
Tilden. It was not believed by fairminded, intelligent men that such a 
division could come about. The outside adherents of each party mutu- 



442 

ally cliurgi' this as a discredit on the opposing members of the Commis- 
sion. The zealous Democrats reproach the Republicans with these par- 
tisan votes of the eight Republican Commissioners, and the zealous Re- 
publicans retort by pointing to the partisan votes of the seven Democrats 
on the Commission. This is about what might be expected from that 
kind of discussion. But that which will live in history and in the minds 
of the vast majority of the public is this : that the seven voted to look 
into the evidence, voted to take testimony, and voted to let in light, so 
as to get at the truth ; and that the eight voted all the time to turn 
away from evidence, to shut out the light, and so to close the door upon 
all etfort to find the truth. The seven voted in a way to promote the 
great object for which the Commission was created ; the eight voted in a 
way to make the Commission utterly useless for the principal purpose 
for which it has any reason for being in existence at all. The Senator, 
the Judge, the Presidential aspirant, the party that supposes the eyes of 
the American people can be closed to this vital aspect of the matter is 
making a signal and perilous mistake. The American people know what 
is honorable, fair, manly, and just ; and their ultimate decisions always 
show that they not only know, but that they act upon their knowl- 
edge." 



APPEN'DIX:. 



THE UNCONSTITUTIONALITY OF TEST OATHS 
FOR PAST CONDUCT. 



THK OPINIONS OF THE SUPREME COUKT OF 
THE UNITED STATES 



CUMMINGS vs. THE STATE OF MISSOURI 



EX-PARTE GARLAND. 



SUPREME COURT OF THE IGNITED STATES. 



John A. (Jl'MMINOS, rhiintiir in Error, 

r.s. 

The State of Missoiui. 



Mr. .lustici' FlKLl) delivered the oiiinioii of the Court.* 

This ca.se comes before us ou a writ of error to the Supreme Court of 
Missouri, aud involves a consideration of the test oath imposed by the 
constitution of that State. The plaintiff in error is a priest of the Ro- 
man Catholic Clmrch, and Avas indicted and convicted in one of the Cir- 
cuit Courts of the State of the crime of teaching and preaching as a 
l)riest and minister of that religious denomination without having first 
taken the oath, and was sentenced to pay a fine of five hundred dollars, 
aud to be committed to jail until the same was paid. On appeal to the 
Supreme Court of the State the judgment was affirmed. 

The oath prescribed by the constitution, divided into its separate parts, 
embraces more than thirty distinct affirmations or tests. Some of the 
acts, against which it is dire(;ted, constitute offences of the highest grade, 
to which, upon conviction, heavy penalties are attached. Some of the 
acts have never been classed as offences in the laws of any State ; and 
some of the acts, under many circumstances, would not even be blame- 
worthy. It requires the affiant to deny not only that he has ever " been 
in armed hostility to the United States, or to the lawful authorities 
thereof," but, among other things, that he has ever, " by act or word," 
manifested his adherence to the cause of the enemies of the United States, 
foreign or domestic, or his desire for their triumph over the arms of the 
United States, or his sympathy with those engaged in rebellion, or has 
ever harbored or aided any person engaged in guerrilla warfare against the 
loyal inhabitants of the United States, or has ever entered or left the 
State for the purpose of avoiding enrollment or draft in the military ser- 
vice of the United States; or, to escape the performance of duty in the 

* Delivered at the December Term, lS6fi, aud reported in 4th Wallace, 
Sup. Ct. iieports, 31G. 



44() 

militia of the United States, has ever indicated, in any terms, his dis- 
affection to the government of the United States in its contest vv^ith the 
rebellion. 

Every person who is nnable to take this oath is declared incapable of 
holding, in the State, " any office of honor, trust, or profit under its au- 
thority, or of being an officer, councilman, director, or trustee, or other 
manager of any corporation, public or private, now existing or hereafter 
established by its authority, or of acting as a professor or teacher in any 
educational institution, or in any common or other school, or of holding 
any real estate or other property in trust for the use of any church, re- 
ligious society, or congregation." 

And every person holding, at the time the constitution takes effect, 
anyof the offices, trusts, or positions mentioned, is required within sixty 
days thereafter to take the oath ; and, if he fail to comply with this re- 
quirement, it is declared that his office, trust, or position shall ipso facto 
become vacant. 

No person, after the expiration of the sixty days, is permitted, without 
taking the oath, "to practice as an attorney or counsellor-at-law, nor after 
that period can any person be competent, as a bishop, priest, deacon, 
minister, elder, or other clergyman, of any religious persuasion, sect, or 
denomination, to teach, or preach, or solemnize marriages." 

Fine and imprisonment are prescribed as a punishment for holding or 
exercising any of " the offices, positions, trusts, professions, or functions " 
specified, without having taken the oath ; and false swearing or affirma- 
tion in taking it is declared to be perjury, punishable by imprisonment 
in the penitentiary. 

The oath thus required is, for its severity, without any precedent that 
we can discover. In the first place, it is retrospective ; it embraces all the 
past from this day ; and, if taken years hence, it will also cover all the 
intervening period. In its retrospective feature We believe it is peculiar 
to this country. In England and France there have been test oaths, but 
they were always limited to an affirmation of present belief or present dis- 
position- towards the government, and were never exacted with reference to 
particular instances of past misconduct. In the second place, the oath is 
directed not merely against overt and visible acts of hostility to the gov- 
ernment, but is intended to reach words, desires, and sympathies also. 
And, in the third place, it allows no distinction between acts springing 
from malignant enmity and acts which may have been prompted by 
charity, or affection, or relationship. If one has expressed sympathy' 
with any who were drawn into the rebellion, even if the recipients of 
that sympathy were connected by the closest ties of blood, he is as unable 
to subscribe to the oath as the most active and the most cruel of the 
rebels, and is equally debarred from the offices of honor or trust, and the' 
positions and employments specified. 

But, as it was observed by the learned counsel Avho appeared on behalf 
of the State of Missouri, this Court cannot decide the case upon the just- 



447 

iff or haidsliip ol" these inovisioiis. lis duty is to (leterniiiie wlietlicr 
they are in conlliet witli the ( 'oust il ut ion ol' the United States. On be- 
half of Missouri, it is urti;ed that they only prescribe a qualification for 
holding certain offices, and practicing certain callings, and that it is, 
tlierefore, within the power of the State to adopt them. On the other hand, 
it is contended that they are in conlliel willi the Coiistiliilion which for- 
bids any State to pass a bill of attainder or an <.r pitsi jui'h, law. 

We admit the propositions of the eouusel of Missouri, that the States 
which existed previous to the adoption of the Federal Constitution pos- 
sessed originally all the attributes of sovereignty ; that they still retain 
those attributes, except as tliey liave Ixen surrendered by the formation 
of the Constitution, and tiie amendments thereto ; that the new States, 
upon their admission into the Union, became invested' with equal rights, 
and were thereafter subject only to similar restrictions, and that among 
the rights reserved to the States is the right of each State to determine 
the qualifications for office, and the conditions upon which its citizens 
may exercise their various callings and pursuits within its jurisdiction. 

These are general propositions and involve principles of the highest 
moment. But it by no means follows that under the form of creating 
a qualification or attaching a condition, the States can in effect inflict a 
punishment for a past act which was not punishable at the time it was 
committed. The question is not as to the existence of the power of the 
State over matters of internal police, but whether that power has been 
made in the present case an instrument for the infiiction of punishment 
against the inhibition of the Constitution. 

Qualifications relate to the fitness or capacity of the party for a par- 
ticular pursuit or profession. Webster defines the term to mean " any- 
natural endowment or any acquirement which fits a person for a place, of- 
fice, or employment, or enables him to sustain any character with success." 
It is evident from the nature of the pursuits and professions of the par- 
ties, placed under disabilities by the constitution of Missouri, that many 
of the acts, from the taint of which they must purge themselves, have 
no possible relation to their fitness for those pursuits and professions. 
There can be no connection between the fact that INIr. Cummings entered 
or left the State of Missouri to avoid enrollment or draft in the military 
service of the United States and his fitness to teach the doctrines or ad- 
minister the sacraments of his churcli ; nor can a fact of this kind, or 
the expression of words of sympathy with some of the jjersons drawn into 
the rebellion, constitute any evidence of the unfitne-ss of the attorney or 
coirusellor to practice his profession, or of the professor to teach the ordi- 
nary branches of education, or of the want of business knowledge 
or business capacity in the manager of a corporation, or in any di- 
rector or trustee. It is manifest upon the simple statement of many 
of the acts and of the professions and pursuits, that there is no 
such relation between them as to render a denial of the commission of 
the acts at all appropriate as a condition of allowing the exercise of the 



448 

Urofossions and piii;suit.s. The oath roultl not, tlieiel'ore, have hpen ro- 
(|iiired as a means of ascertaining whether parties were qnalifled or not 
lor their respective callings or the trusts with which they were charged. 
It was required in order to reach the person, not the calling. It was ex- 
acted, not from any notion that the several acts designated indicated un- 
fitness for the callings, but because it was thought that the several acts 
deserved punishment, and that for many of them there was no way to 
inflict punishment except by depriving the parties, who had committed 
them, of some of the rights and privileges of the citizen. 

The disabilities created by the constitution of Missouri must be re- 
garded as penalties ; they constitute punishment. We do not agree with 
the counsel of Missouri that " to punish one is to deprive him of life, 
liberty, or property, and that to take from him anything less than these 
is no punishment at all." The learned counsel does not use these terms, 
life, liberty, and property, as comprehending every right known to the law. 
He does not include under liberty freedom from outrage on the feelings 
as well as restraints on the person. He does not include under property 
those estates whic^h one may acquire in pi'ofessions, though they are often 
the source of the highest emoluments and honors. The deprivation of 
any rights, civil or ])olitical, previously enjoyed, may be punishment, 
the circumstances attending and the causes of the deprivation determin- 
ing this foct. Disqualification from office may be punishment, as in 
cases of conviction upon impeachment. Disqualification from the pur- 
suits of a lawful avocation, or from positions of trust, or from the privi- 
lege of appearing in the courts, or acting as an executor, administrator, 
or guardian, may also and often has been, imposed as punishment. By 
statutes 9 and 10 William III., chap. 32, if any person educated in or 
having made a profes.sion of the Christian religion, did, " by writing, print- 
ing, teaching, or advised speaking," deny the truth of the religion, or the 
divine authority of the Scriptures, he was for the first offence rendered 
incapable to hold any office or place of trust ; and for the second he was 
rendered incapable of bringing any action, being guardian, executor, lega- 
tee, or purchaser of lands, besides being subjected to three years imprison- 
ment without bail. • 

By statute 1 George I., ehap. 13, contempts against the King's title, aris- 
ing from refusing or neglecting to take certain prescribed oaths, and yet 
acting in an office or place of trust for which they were required, were 
punished by incapacity to hold any public oftice; to prosecute any suit ; 
to be guardian or executor; to take any legacy or deed of gift; and to 
vote at any election for tncmhers of Parliament : and the offender was 
also subject to a forfeiture of five hundred pounds to any one who would 
sue for the same.f 

" Some punishments," .says Blackstone, " consist in exile or banishment 
by abjuration of the realm or transportation; others in loss of liberty 



-■4 Blackstone, 44 f Ibid., 124. 



44!) 



by pcrpclual or triii|)(ir:ir.v iiu])iis(iiiiticnl. Some (•\t(Mi(l to CDiilisciil ion 
by forfeit lire ol'laiiils or iiK.vMlilis. or botli. or ol'l he i)rolits of lands for life ; 
others induce a disaliiiity of lioldinn otliees or employnients, boing heirs, 
executors, and the like." ■ 

In France deprivation or suspension of ci\ il ii<j;hts, or of some of them, 
and amon<>: these of the ri<iht of votiui>:. of eligibility to otTice, or of tak- 
inii part in family councils, of beiufjounrdian or trustee, of bearing arms, 
and of teaching or being employed in a school or seminary of learning, 
are punishments prescribed by her code. 

The theory upon which our political institutions rest is, that all men 
have certain inalienable rights; that among these are life, liberty, and 
the pursuit of happiness ; and that in the pursuit of happine.ss all avoca- 
tions, all honors, all positions are alike open to every one, and that in the 
protection of these rights all are equal before the law. Any deprivation 
or suspension of any of these rights for past conduct is punishment, and 
can be in no otherwise defined. 

Punishment not being, therefore, restricted, as contended by counsel, 
to the deprivation of life, liberty, or property, but also embracing depri- 
vation or susi)ension of political or civil rights, and the disabilities pre- 
scribed bjr the provisions of the Missouri constitution, being in effect 
punishment, we proceed to consider whether there is any inhibition in the 
Constitution of the United States against their enforciemeut. 

The counsel for Missouri closed his argument in this case by presenting 
a striking picture of the struggle for ascendency in that State during the 
recent rebellion, between the friends and enemies of the Union, and of 
the fierce pas.sions which that struggle aroused. It was in the midst of 
the struggle that the present constitution was framed, although it was 
not adopted by the people until the war had closed. It would have been 
strange, therefore, had it not exhibited in its provisions some traces of the 
excitement amidst which the convention held its deliberations. 

It was against the excited action of the States under such influences 
as these that the framers of the Federal Constitution intended to guard. 
In Fletcher vs. Peck,t Mr. Chief Justice Marshall, speaking of such ac- 
tion, uses this language : " Whatever respect might have been felt for the 
State sovereignties, it is not to be disguised that the framers of the Consti- 
tution viewed with some appiehension the violent acts which might grow 
out of the feelings of the moment ; and that the people of the United 
States, in adopting that in.strument, have manifested a determination to 
shield themselves and their property from the effects of those sudden and 
strong pa.ssions to which men are exposed. The restrictions on the legis- 
lative power of the States are obviously founded in this sentiment ; and 
the Constitution of the United States contains what may be deemed a 
bill of rights for the people of each State." 

" ' No State shall pass any bill of attainder, c.r post facto law, or law 
impairing the obligation of contracts.' " 

•■■■4 Vol., :^77. t (i ('ranch. i:iT. 



451) 

A bill of attainder is a legislative act which intlicts punishnieut with- 
out a judicial trial. If the punishment be less than death the act is 
termed a bill of pains and penalties. Within the meaning of the Con- 
stitution, bills of attainder include bills of pains and penalties. In these 
cases the legislative body, in addition to its legitimate functions exercises 
the powers and office of a judge; it assumes, in the language of the text- 
books, judicial magistracy ; it pronounces upon the guilt of the party 
without any of the forms or safeguards of trial ; it determines the sufl&- 
ciency of the proofs produced, whether conformable to the rules of evi- 
dence or otherwise ; and it fixes the degree of punishment in accordance 
with its own notions of the enormity of the offence. 

" Bills of this sort," says Mr. Justice Story, " have been most usually 
passed in England in times of re))ellion or gross subserviency to the 
Crown, or of violent ijolitical excitements ; periods, in which all nations 
are most liable (as well the free as the enslaved) to forget their duties, 
and to trample upon the rights and liberties of others."* 

These bills are generally directed against individuals by name, but they 
may be directed against a whole class. The bill against the Earl of Kil- 
tlare and others, passed in the reign of Henry VIII.,t enacted that " all 
such persons which be or heretofore have been comlbrters, abettors, par- 
takers, confederates, or adherents vmto the said " late earl, and certain 
otlier parties who were named, " in his or their false or traitorous acts 
and purposes, shall in likewise stand, and be attainted, adjudged, and 
convicted of high treason;" and that "the same attainder, judgment, and 
conviction against the said comforters, abettors, partakers, confederates, 
and adherents, shall be as strong and effectual in the law against them, 
and every of them, as though they and every of them had been specially, 
singularly, and particularly named by their proper names and surnames 
in the said act." . 

These bills may intlict punishment absolutely, or may inflict it con- 
ditionally. 

The bill against the Earl of Clarendon, passed in the reign of Charles 
the Second, enacted that the earl should suffer perpetual exile, and be for- 
ever banished from the realm ; and that if he returned, or was found in 
England, or in any other of the King's domains after the first of February, 
1667, he should suffer the pains and penalties of treason ; with the pro- 
viso, however, that if he surrendered himself before the said first day of 
February for trial, the penalties and di.'^abilities declared should be void 
and of no elfect.J 

" A British Act of Parliament," to cite the language of the Supreme 
Court of Kentucky, " might declare, that if certain individuals, or a class 
of individuals, failed to do a given act by a named day, they should be 
deemed to be, and treated as convicted felons or traitors. Such an act 

* Commentaries on the Constitution, ? 1, 344. 

t28 Henry VIII., Chap. 18, 3 Stats, of the Realm, 694. 

+ Printed 'in 6 IFowoll's State Trials, p. 391. 



4.-,! 

coiiu's iirccis{l> wilhiii llic dcliiiil iuii of ;i liill ol at l;iiii(l<-i . and llic I'.iit;- 
lisli courts would enlbrcc it witlutiit iiulictmout or trial by jury." •■■ 

If llie clauses of the secoud articit- of the constitution of Missouri, to 
whicii wo liave referred, had in terms declared that Mr. Cunnnings was 
jiuilty, or should be hehl ji'uilty, of having been inarmed lioslility to tlie 
United States, or of liaving entei'ed tliat State to avoid Ijcinji enrolled or 
drafted into the military service of the United States, and, therefore, should 
be deprived of the right to preach as a priest of the Catholic Chureli, or to 
teach in any institution of learning, there could be no (|U(sli(>n that tlic 
clauses would constitute a bill of attainder within tlic meaning of tlic 
Federal Constitution. If these clauses, instead of incut ioning bis name 
liad declared that all priests and clergymen within tlu^ Slate of Missouri 
were guilty of these acts, or should be held guilty of tliem, and hence 
be subjected to the lilce deprivation, the clau.ses would be equally open to 
objection. And further, if these clauses had declared that all sucli priests 
and clergymen should be so held guilty, and be thus deprived, provided 
they did not, by a day designated, do certain specified acts, they would be 
no less within the inhibition of the Federal Constitution. 

In all these cases there would be the legislative enactment creating the 
deprivation without any of the ordinary forms and guards provided for 
the security of the citizen in the administration of justice by the estab- 
lished tribunals. 

The results which would follow IVom clauses of the character men- 
tioned do follow froni tlie clauses actually adopted. The difference be- 
tween the last case supposed and the case actually presented is one of 
form only, and not of substance. The existing clauses presume the 
guilt of the priests and clergymen, and adjudge the deprivation of their 
right to preach or teach unless the presumption be first removed by their 
expurgatory oath ; in other words, they assume the guilt and adjudge the 
punishment conditionally. The clauses supposed differ only in that they 
declare the guilt instead of assuming it. The deprivation is efteeted with 
equal certainty in the one case as it would be in the other, but not with 
equal directness. The purpose of the law-nuiker in the case supposed 
would be openly avowed; iu the case existing it is only disguised. The 
legal result must be the .same, for what cannot be done directly cannot 
be done indirectly. The Constitution deals with substance, not shadows. 
Its inhibition was leveled at the thing, not the name. It intended that 
the rights of the citizen should be secure against deprivation for past 
conduct by legislative enactment, under any ibrm, however disguised. If 
the inhibition can be evaded by the form of the enactment, its insertion 
in the fundamental law was a vain and futile proceeding. 

We proceed to consider the secoud clause of what Mr. Chief Justice 
Mar-shall terms a bill of rights for the people of eacli State ; the clause 
which inhibits the passage of an ex post facto law. 

'■•' Gaines vs. Bufori), 1 Dana, 51(1. 
30 



4 5 -J 

By an r.r j)ost facto law is moant one wliich imposes a pnnislinient for 
an aet wliieh was not ])unishable at the time it was committed ; or im- 
poses additional pnnisliment to that then prescribed; or changes the 
rnles of evidence by which less or ditferent testimony is sufficient to con- 
vict than was then required. 

In Fletcher vs. Peck, Mr. Chief Justice Marshall defined an ex post 
facto law to be one " which renders an act punishable in a manner in 
which it was not puni.shable Avhen it was committed." " Such a law," 
said that eminent judge, " may inflict penalties on the person, or may in- 
flict pecuniary penalties which swell the public treasury. The Legislature 
is tlien prohibited from passing a law by which a man's estate, or any 
part of it, shall be seized for a crime, which .was not declared by some 
previous law to render him liable to that punishment. Why, then, should 
violence be done to the natural meaning of words for the purpose of leav- 
ing to the Legislature the power of seizing for public use the estate of an 
individual, in tlft" form of a law annulling the title by which he holds 
the estate ? The Court can perceive no sufficient grounds for making this 
distinction. This rescinding act would have the effect of an ex post facto 
law. It forfeits the estate of Fletcher for a crime not committed by him- 
self, but by those from whom he purchased. This cannot be etfected in 
the form of an ex post facto law, or bill of attainder; why, then, is it al- 
lowable in the form of a law annulling the original grant? " 

The act to which reference is here made was one passed by the State 
of Georgia, rescinding a previous act, under Avhich lands had been granted. 
The rescinding act, annulling the title of the grantees, did not, in terms, 
define any crimes, or inflict any punishment, or direct any judicial pro- 
ceedings ; yet, inasmuch as the Legislature was forbidden from passing any 
law by which a man's estate could be seized for a crime, which was not 
declared such by some previous law rendering him liable to that punish- 
ment, the Chief Justice was of opinion that the rescinding act had the ef- 
fect of an ex post facto law, and was within the constitutional prohibition. 

The clauses in the Missouri constitution, which are the subject of con- 
sideration, do not, in terms, define any crimes, or declare that any pun- 
ishment shall be inflicted, but they produce the same result upon the 
parties, against whom they are directed, as though the crimes were de- 
fined and the punishment was declared. They assume that there are 
persons in Missouri who are guilty of some of the acts designated. They 
would have no meaning in the constitution were not such the fact. They 
are aimed at past acts, and not future acts. They were intended es- 
pecially to operate upon parties who, in some form or manner, b3^ action 
or words, directly or indirectly, had aided or countenanced the rebellion, 
or sympathized with parties engaged in the rebellion, or had endeavored 
to escape the proper responsibilities and duties of a citizen in time of 
war ; and they were intended to operate by depriving such persons of the 
right to hold certain offices and trusts, and to pursue their ordinary and 
regular avocations. This deprivation is punishment : nor is it any less so 



45:! 

becauso a. way is opened tor oscapc liom it h.v llic cxpuriiatory oatli. Tlic 
frainors oftlie constitution ot'Mi.ssouri knew at the tinif that whole chisses 
of iiidividiiuls would be unable to take the oath preseiibcd. To them there 
is no eseape provided ; to them the deprivation was intended to be, and 
is, absolute and i3er]ii'tual. To make the enjoyment of a right dependent 
upon an impossible eondilion is equivalent to an absolute denial of the 
right under any eonditiou, and such denial, enCoiccd lor a jnist aet, is 
nothing less than punishment imposed lor that act. It is a misapplica- 
tion of terms to call it anything else. 

Now, some of the acts to which the expurgatory oath is directed, 
were not offences at the time they were committed. It was no offence 
against any law to enter or leave the State of Missouri for the purpose 
of avoiding enrollment o'r draft in the military service of the United 
States, however much the evasion of such service might be the subject 
of moral censure. Clauses which prescribe a penalty for an aet of this 
nature, are within the terms of the definition of an ex post fad o law ; 
" they impose a punishment for an act not punishable at the time it was 
committed." 

Some of the acts at which the oath is directed constituted high offences 
at the time they were committed, to which, upon conviction, fine and 
imprisonment, or other heavy penalties were attached. The clauses which 
provide a further penalty for these acts are also within the definition of 
au c.r j7ost facto ]a\v ; "they impose additional punishment to that pre- 
scribed when the act was committed." 

And this is not all. The clauses in question subvert the presumptions 
of innocence, and alter the rules of evidence, which heretofore, under the 
universally recognized principles of the common law, have been supposed 
to be fundamental and unchangeable. Tliey assume that the parties are 
guilty ; they call upon the parties to establish their innocence ; and 
they declare that such innocence can be shown only in one way; by an 
inquisition, in the form of an expurgatory oath, into the consciences of 
the i^arties. 

The olrjectionable character of these clauses will be more apparent if 
we put them into the ordinary form of a legislative act. Thus, if instead 
of the general provisions in the constitution the convention had provided 
as follows : Be it enacted, that all persons who have been in armed hostility 
to the United States shall, npon conviction thereof, not only be punished 
as the laws provided at the time the offences charged were committed, 
but shall also be thereafter rendered incapable of holding any of the of- 
fices, trusts, and positions, and of exercising any of the pursuits men- 
tioned in the second article of the constitution of Missouri ; no one would 
have any doubt of the nature of the enactment. It would be an ex post 
facto law, and void ; for it would add a new punishment for an old of- 
fence. So, too, if the convention had passed an enactment of a similar 
kind with reference to those acts which did not constitute offences. Thus, 
had it provided as follows: Be it enacted, that all persons who have here- 



4")4 

tolorc, at any lime, cuteicd or lel't the State of Jlissoiiii. witli intent to 
avoid enrollment or draft in the military service of the United States, 
shall, upon conviction thereof, be forever rendered incapable of holdiiij> 
any office of honor, trust, or profit in the State, or of teaching in any 
seminary of learning, or of preaching as a minister of the Gospel of any 
denomination, or of exercising any of the professions or pursuits men- 
tioned in the second article of the constitution; there would be no ques- 
tion of the character of the enactment. It would be an ex pod facto law, 
because it would impose a punishment tor an act not ])unisha])le at tlu' 
lime it was committed. 

The provisions of the constitution of Missouri accomplish precisely 
what enactments like those supposed would have accomplished. They 
impose the same penalty, without the formality of a judicial trial and 
conviction ; for the parties embraced by the supposed enactments would 
be incapable of taking the oath prescribed ; to them its requirement 
would be an impossible condition. Now, as the State, had she attempted 
the course supposed, would Jiave failed, it must follow that any other 
mode producing the same result must equally fail. The provisions of the 
Federal Constitution, intended to secure the liberty of the citizen, cannot 
be evaded by the form in which the power of the State is exerted. If 
this were not so, if that which cannot be accomplished by means looking 
directly to the end, can be accomplished by indirect means, the inhibition 
may be evaded at pleasure. No kind of oppression can be named, against 
which the framers of the Constitution intended to guard, which may not 
be effected. Take the case supposed by counsel ; that of a man tried for 
treason and acquitted, or if convicted, pardoned ; the Legislature may 
nevertheless enact that, if the person thus acquitted or pardoned does 
not take an oath, that he never has committed the acts charged against 
him, he shall not be permitted to hold any office of honor, or trust, or 
profit, or pursue any avocation in the State. Take the case before us ; 
the constitution of Missoiiri, as we have seen, excludes, on failure to take 
the oath prescribed by it, a large class of persons within her borders from 
numerous positions and pursuits ; it would have been equally Avithin the 
power of the State to have extended the exclusion so as to deprive the 
parties, who are unable to take the oath, from any avocation whatever in 
the State. Take still another case ; suppose that, in the progress of events, 
l)ersons now in the minority in the State, should obtain the ascendency, 
and secure the control of the government; nothing could prevent, if the 
constitiTtional prohibition can be evaded, the enactment of a j)rovision 
requiring every person, as a condition of holding any position of honor 
or trust, or of pursqiqg any avocation in the State, to take an oath that 
he had never advocated or advised or supported the imposition of the 
present expurgatory oath, Under this form of legislation the most fla- 
grant invasion of private rights, in periods of excitement, may be enacted, 
and individuals, even Ayhole classes, iiiav be deprived of political and civil 
rights. 



A question arose in New York, soon after tlie Treaty of I'eaeo in 1783, 
Upon a statute of tliat State, which involved a discussion of the nature 
alid charuetcr of tlu^se expurgatory oaths, wlu'U used as a means of in- 
flicting punishment for past conduct. The suhjcet was regarded as so 
important, and the fetiuirement of the oath such a violation of the fun- 
damental principles of t^ivil liberty, and the rights of llie citizen, that it 
engaged the attention of eminent lawyers and distinguished statesmen 
of the time, and among others of Alexander Itamilton. We will cite 
some passages of a paper left by him on the subject, in which, with his 
characteristic fullness and ability, he examiiu^stlie oath, and demonstrates 
that it is not only a mode of inflicting punishment, but a mode in viola- 
tion of all the constitutional guaranties, secured by the Revolution, of the 
rights and liberties of the people. 

"If we examine it,*' (the measure recjuiring the oath,) said this great 
lawyer, " with an unprejudiced eye, we must acknowledge, not only that 
it was an evasion of the treaty, but a subversion of one great principle of 
Social security, to wit: that every man shall be presumed innocent until 
he is proved guilty. This was to invert the order of things; and, instead 
of obliging the State to prove the guilt, in order to inflict the penalty, it 
was to oblige the citizen to establish his own innocence to avoid the 
penalt3\ It was to excite scruples in the honest and conscientious, and 

to hold out a bribe to perjury It was a mode of inquiry who 

had committed any of those crimes to which the penalty of disqualifica- 
tion was annexed, with this aggravation, that it deprived the citizen of 
the benefit of that advantage, which he would have enjoyed by leaving, 
as in all other cases, the burthen of the proof upon the prosecutor. 

" To place this matter in a still clearer light, let it be supposed that 
instead of the mode of indictment and trial by jury the Legislature was 
to declare that every citizen, who did not swear he had never adhered to 
the King of Great Britain, should incur all the penalties which our 
treason laws prescribe. Would this not be a palpable evasion of the 
treaty, and a direct infringement of the Constitutiou ? The principle is 
the same in both cases, with only this difference in the consequences ; — 
that in the instance already acted upon the citizen forfeits a part of his 
rights ; in the one supposed he would forfeit the whole. The degree of 
punishment is all that distinguishes the cases. In either, justly consid- 
ered, it is substituting a new and arbitrary mode of prosecution to that 
ancient and highly-esteemed one recognized by the laws and the consti- 
tution of the State. I mean the trial by jury. 

" Let us not forget that the Constitution declares that trial by jury, in 
all cases in which it has been formerly used, should remain inviolate for- 
ever, and that the Legislature should at no time erect any new jurisdic- 
tion which should not proceed according to the course of the common 
law. Nothing can be more repugnant to the true genius of the com- 
mon law than such an inquisition as has been mentioned into the con- 
sciences of men If any oath with retrospect to past 



45H 

conduct were to be made the condition on which individuals, who have 
resided within the British lines, should hold their estates, we should im- 
mediately see that this proceeding would be tyrannical, and a violation 
of the treaty ; and yet, when the same mode is employed to divest that 
right, which ought to be deemed still more sacred, many of us are so 
infatuated as to overlook the mischief. 

" To say that the persons who will be affected by it have previously 
forfeited that right, and that therefore nothing is taken away from them, 
is a begging of the question. How do we know who are the persons in 
this situation ? If it be answered, this is the mode taken to ascertain 
it, the objection returns, 'tis an improper mode, because it puts the most 
essential interests of the citizen upon a worse footing than we should be 
willing to tolerate where inferior interests were concerned, and because, 
to elude the treaty, it substitutes for the established and legal mode of 
investigating crimes and inflicting forfeitures, one that is unknown to 
the Constitution, and repugnant to the genius of our law." 

Similar views have frequently been expressed by the judiciary in cases 
involving analogous questions. They are presented with great force in 
the matter of Dorsey,* but we do not deem it necessary to pursue the 
subject further. 

The judgment of the Supreme Court of Missouri must be reversed, and 
the cause remanded, with directions to enter a judgment reversing the 
judgment of the Circuit Court, and directing that Court to discbarge the 
defendant from imprisonment, and suffer him to depart without day. 
Aud it is so ordered. 

* 7 Porter's Eeports, 294. 



SUPKEME OOUKT OF THE UNITEJ) 8TATJCS. 



l^X-l'ARTE GARI.AKI 



ttlr. Justice Field delivered the opinion of the Court* 

Oil the 2d of July, 1862, Congress passed an act prescribing an oatli to 
be taken by every person elected or appointed to any otBce of honor or 
profit under the Government of the United States, either in the civil, 
military, or naval dciiartments of the public service, except the I'resident, 
before entering upon the duties of his office, and before being entitled to its 
salary or other emoluments. On the 24th of January, 1865, Congress, by 
a supplementary act, extended its provisions so as to embrace attorneys 
and counsellors of the Courts of the United States. This latter act pro- 
vides that after its passage no person shall be admitted as an attorney 
and counsellor to the bar of the Supreme Court, and, after the 4th of 
March, 1865, to the bar of any Circuit or District Court of the United 
States, or of the Court of Claims, or be allowed to appear and be heard by 
virtue of any previous admission, or any special power of attorney, unless 
he shall have first taken and subscribed the oath jjrescribed by the act of 
July 2d, 1862. It also provides that the oath shall be preserved among 
the files of the Court, and if any person take it falsely he shall be guilty 
of perjury, and, upon conviction, shall be subject to the pains and penal- 
ties of that offence. 

At the December Term, 1860, the petitionei- was admitted as an attor- 
ney and counsellor of this Court, and took and subscribed the oath then 
required. By the second rule, as it then existed, it was only requisite to 
the admission of attorneys and counsellors of this Court that they should 
have been such officers for three previous years in the highest Courts of 
the States to which they respectively belonged, and that their private 
and profes.sional character should appear to be fair. 

In March, 1865, this rule was changed by the addition of a clause re- 
quiring the administration of the oath in conformity with the act of 
Congress. 

In May, 1861, the State of Arkansas, of which the petitioner was a cit- 
izen, passed an ordinance of secession which purported to withdraw the 



* Delivered at the December Term, 1866, and reported in 4tli Wallace, 
Supreme Court Reiwrts, 374. 



4')X 

.State Iroin tla- Union, and afterwards, in the same year, by another ordi- 
nance, attached herself to tlie so-called Confederate States, and by act of 
the Congress of that Confederacy was received as one of its members. 

The petitioner followed the State and was one of her representatives, 
first in the lower honse and afterwards in the Senate, of the Congress of 
that Confederacy, and was a member of the Senate at the time of the 
surrender of the Confederate forces to the armies of the United States. 

In July, 18(55, he received from the President of the United States a 
full pardon for all offences committed by his participation, direct or im- 
plied, in the Rebellion. He now produces his pardon and asks permission 
to continue to practice as an attorney and counsellor of the Court with- 
out taking the oath required by the act of January 24th, 1865, and the 
rule of the Court, which he is unable to take by reason of the offices he 
held under the Confederate (iovernment. He rests his application princi- 
pally upon two grounds : 

1st. That the act of January -Jlth, 1S(J5, so far as it affects his status in 
the Court, is unconstitutional and void; and, 

2d. That, if the act be constitutional, he is released from comi)liance 
with its provisions by the pardon of the President. 

The oath prescri))ed by the act is as follows : 

1st. That the deponent has never voluntarily borne arms against the 
United States since he has been a citizen thereof; 

2d. That he has not voluntarily given aid, countenance, counsel, or en- 
couragement to persons engaged in armed hostility thereto ; 

IM. That he has never sought, accepted, or attempted to exercise the 
functions of any office whatsoever, under any authority, or pretended au- 
thority, in hostility to the United States ; 

4th. That he has not yielded a voluntary support to any pretended 
government, authority, power, or constitution within the I'nited States, 
hostile or inimical thereto ; and, 

5th. That he will support an(i defend the Constitution of the United 
States against all enemies, foreign and domestic, and w ill bear true faith 
and allegiance to the same. 

This last clause is promissory only, and requires no consideration. The 
questions presented for our detei'mination arise from the other clauses. 
These all relate to past acts. Some of these acts constituted, when they 
were committed, offences against the criminal laws of the country ; others 
may, or may not, have been offences, according to the circumstances un- 
der which they were committed and the motives of the parties. The 
first clause covers one form of the crime of treason, and the deponent 
must declare that he has not been guilty of this crime, not only during 
the war of the Kebellion, but during any period of his life since he has 
been a citizen. The second clause goes beyond the limits of treason and 
embraces not only the giving of aid and encouragemeiit of a treasonable 
nature to a public enem.y, but also the giving of assistance of any kind 
to persons engaged in armed hostility to the Ignited States. The third 



459 

chmsc ;ii)plif.s (o the sc'(.'kin<i-, acceptance, of exercise, not only of odice.s 
created for the inirpose of more elfectually carrying on hostilities, but 
also of any of those ofiices which are required in every community, 
whether in i)eace or war, for the administration of .justice and the preser- 
vation of order. The fourth clause not only includes those who gave a 
cordial and active support to the hostile government, but also those Avho 
yielded a reluctant obedience to the existing order, established Avithout 
their co-operation. / 

The statute is directed against i>arties who have otfeiuled in any of 
the particulars embraced by these clauses. Audits object is to exclude 
theui from the profession of the law, or at least from its practice in the 
Courts of the United States. As the oath prescribed cautiot be taken by 
these parties, the act, as against them, operates as a legislative decree of 
perpetual exclusion. And exclusion from any of the professions or any 
of the ordinary avocations of life for past conduct can be regarded in no 
other light than as puui.shmeut for such conduct. The exaction of the 
oath is the mode provided for ascertaining the parties upon whom the 
act is intended to operate, and instead of lessening, increases its objec- 
tionable character. All enactments of this kind partake of the tiature 
of bills of pains and penalties, and are subject to the constitutional in- 
hibition against the passage of bills of attainder, under which general 
designation they are included. 

In the exclusion which the statute adjudges, it impo.ses a punishment 
for some of the acts specified, which were not punishable at the time 
they were committed; and for other of the acts it adds a new punish- 
ment to that before prescribed, and it is thus brought within the further 
inhibition of the Constitution against the passage of an ex post facto law. 
In the ca.se of Cummings against The State of Missouri, just decided, we 
have had occasion to consider at length the meaning of a bill of attain- 
der and of an e.c post facto law in the clause of the Constitution forbid- 
ding their passage by the States, and it is unnecessary to repeat here 
what we there said. A like prohibitioji is contained in the Con.stitution 
against enactments of this kind by Congress; and the argument pre- 
.sented in that case against certain clauses of the constitution of Missouri 
is equally applicable to the act of Congress under consideration in this 



■' Suppose the act to have been mandatory to the Courts, to call upon 
all the members of their bar to answer on oath whether they had borne 
arms against the United States since they became citizens ; whether they 
had voluntarily given aid, counsel, countenance, or encouragement to per- 
s(Uis engaged in hostilities to the United States; whether they had sought 
or jierfoiined the functions of any office, under any authority, or pre- 
tended authorit}', in ho.stility to the United States ; or had yielded a vol- 
untary support to any pretended authority or government within the 
United States, or inimical thereto, and upon the failure of any one to 
answer such interrogations, and all elucidating interrogations, or to an- 
swer satisfactorily, it should be their duty to erase the name of such re- 



4(10 

The profession of au attorney and counsellor is not like an office cre- 
ated by an act of Congress, which depends for its continuance, its powers, 
and its emoluments upon the will of its creator, and the possession of 
which may be burdened with any conditions not prohibited by the Con- 
stitution. Attorneys and counsellors are not officers of the United States ; 
they are not elected nor appointed in the manner prescribed by the Con- 
stitution for the election and appointment of such officers. They are of- 
ficers of the Court, admitted as such by its order, upon evidence of their 
possessing sufficient legal learning and fair private character. It has 
been the general practice in this country to obtain this evidence by an 
examination of the parties. In this Court the fact of the admission of 
such officers in the highest Court of the States to which they respectively 
belong, for three years preceding their application, is regarded as suffi- 
cient evidence of the possession of the requisite legal learning, and the 
statement of counsel, moving their admission, sufficient evidence that 
their i)rivate and professional character is fair. The order of admission 

cusant attorney from the rolls. . . . And suppose in such case the 
Attorney-General were asked whether, since he had been a citizen of the 
United States, he had borne arms against the United States ? The At- 
'torney-General would be informed that he might answer or not ; but if 
he failed to answer he would lose his faculty of appearing in Court. If 
he answered in the affirmative he would forfeit his place, and if he an- 
swered falsely he would be liable to indictment He must 

have answered': ' May it please your Honors, the Constitution of the 
United States declares that " no person shall be HKLD to answer for 
A CAPITAL OR OTHER INFAMOUS OFFENCE, unless on the presentment of 
a grand jury ; that no person shall be convicted of treason unless on the 
testimony of two witnesses to the same overt act, or confession in open 
court ; and that no person shall be compelled in any criminal case to be 
a witness against himself." The act of bearing arms against the United 
States is an overt act of treason by a citizen thereof The demand upon 
a whole profession — a profession of which I am a member — to perform a 
ceremony that violates the Constitution is an indignity. I fulfill my 
oath of office to support this Constitution by declining to answer the 
question. I submit this answer to the conscience of the Court.' I feel 
satisfied that no Supreme Court would have insisted on the answer. . . 

" Let US suppose that the act had enumerated by name all the members 
of the bar of the different Courts of the United States, and had enacted 
that each and all of those must be prohibited from entering the Courts 
until they had made oath that they had not, in the course of their lives, 
violated any one of the TEN commandments. Some of these command- 
ments do not enter into the statute laws of the United States ; and others 
are not, perhaps, the subject of legislative action in any of the United 
States. Every one of the existing members of the legal profession would 
probably find himself in a condition not to answer to his own satisfaction 
such interrogatories to himself as the law would elicit. 

" Jeremy Taylor, in his exposition of those commandments — not a 
strained construction of them— shows that they include nearly all of the 
social, civil, and personal obligations of men. I am wholly unable to 
find any arguments in favor of my professional brethren to avoid the issue 
of such a test, that are not equally applicable to the act of January, 1865." 
—Campbell. 



4H1 

is tho jiulgmcnt of the Court tluit llic paitien possess tlic roqiiisitc (jiiali- 
tieations as attorneys and counsellors, and are entitled to appear as such 
and conduct causes therein. From its entry the parties become otticers 
of the Court, and are responsible to it lor professional misconduct. They 
liold their office during good behavior, and can only be deprived of it 
tor misconduct ascertained and declared by the judgment of the Court, 
alter opportunity to be heard has been afforded.* Their admission or 
their exclusion is not the exercise of a mere ministerial power. It is the 
exercise of judicial power, and has been so held in numerous cases. It 
was so held by the Court of Appeals of New York in the matter of the 
application of Cooper for admission.f " Attorneys and counsellors," said 
that Court, "are not only officers of the Court, but oflicers whose duties 
relate almost exclusively to proceedings of a judicial nature. And hence 
their appointment may, with propriety, be intrusted to the Courts, and 
the latter, in performing this duty, may very justly be considered as en- 
gaged in the exercise of their appropriate judicial functions." 

In E.r-partc Secombe,X a mandamus to the Supreme Court of the Terri- 
tory of Minnesota to vacate an order removing an attorney and counsellor 
was denied by this Court, on the ground that the removal was a judicial 
act. " We are not* aware of any case," said the Court, "' where a vinn- 
tlamus was issued to an inferior tribunal, commanding it to reverse or 
annul its decision, where the decision was in its nature a judicial act, and 
within the scope of its jurisdiction and discretion." And in the same 



* '■ It is a fundamental principle in jurisprudence that no man shall be 
depri^ed of his right without citation and an opportunity of being heard. 
In the jurisprudence of the Romans — the magistrates of mankind — it 
was a rule that no judgment should be given before citation. A Roman 
governor, in a remote and dcspistd province — a governor weak, fiiithless, 
and corrui)t — in the case of tlit ij,r<at Apostle, has made this principle a 
liome word in the mouths of all Clnistians. Festus informed Agrippa 
that he had answered to the Jews: 'It is not the manner of the Romans 
to deliver any man to die, before that he which is accused have the a(!- 
cusers face to face, and have license to answer for himself concerning the 
crime laid against him.' — (Acts, chap. 25, v. 16.) This sentence is a part 
of the Constitution of the United States, with more generality than it 
was necessary for Festus to state." — Campuell. 

In Ex-parte Robinson, decided at the October Term, 1873, (19 WalL, 
512-'13,) the Court held that before a judgment disbarring an attorney 
was rendered, he should have notice of the grounds of complaint against 
him and ample opportunity of explanation and defence, and that this 
was a rule of natural justice which should be equally followed when pro- 
ceedings are taken to deprive him of his right to practice his profession, 
as when they are taken to reach his real or personal i)ro]ierty ; observing 
that the principle that there must be citation before hearing, and hearing 
or opportunity of Ix^ing heard before judgment, was essential to the se- 
curity of all private rights, and without its observance no one would be 
safe from oppression wherever power may be lodged. — (See Ex-parte Hey- 
fron, 7 Howard, Mississippi, 127 ; People vs. Turner, 1 Cal., 148 ; Beene vs. 
The State, 22 Ark., 157 ; and Fletcher vs. Daingerfield, 20 California, 430.) 

t 22 New York, 81. 1 19 Howard, 9. 



4<;2 

t-ase the Court observed that " it has been well settled by the rules and 
practice of Common-law Courts, that it rests exclusively with the Courts 
to determiue who is qualified to become one of its officers, as an attorney 
and counsellor, and for what cause he ought to be removedi"* 

The attorney and counsellor being, by the solemn judicial act of the 
Court, clothed with his office, does not hold it as a matter of grace and 
favor. The right which it confers upon him to appear for suitors, and to 
argue causes, is something more than a mere indulgence, revocable at 
the pleasure of the Court, or at the command of the Legislature. It is a 
right of which he can only be deprived by the judgment of the Court for 
moral or prolessional delinquency. 

The Legislature may undoubtedly prescribe qualifications for the office, 
to which he must conform, as it may, where it has exclusive jurisdiction, 
prescribe qualifications for the pursuit of any of the ordinary avocations 
of life. The question in this case is not as to the power of Congress to 
prescribe qualifications, but whether that power has been exercised as a 
means for the infliction of punishment against the prohibition of the Con* 
stitution. That this result cannot be effected indirectly by a State under 
the form of creating qualifications we have held, in the case of Curn^ 
minc/s vs. The Staie of Missouri, and the reasoning by•^vhich that conclu' 
sion was reached applies equally to similar action on the part of Con ' 
gress. 

This view is strengthened by a consideration of the effect of the pardon 
produced by the petitioner, and the nature of the pardoning power of the 
President. 

The Constitution provides that the President " shall have power to 
grant reprieves and pardons for offences against the United States, ex- 
cept in cases of impeach men t.''t 

The power thus conferred is unlimited, with the exception stated. It 
e.xtends to every offence known to the law, and may be exercised at any 
time after its commission, either before legal proceedings are taken or 
during their pendency, or after conviction and judgment. This power 
of the President is not subject to legislative control. Congress can neither 
limit the effect of his pardon nor exclude from its exercise any class of 
offenders. The benign prerogative of mercy reposed in him cannot be 
fettered by any legislative restrictions. * 

Such being the case, the inqtiiry arises as to the eft'ect and operation 
of a pardon, and on this point all the authorities concur. A pardon 
reaches both the punishment prescribed for the offence and the guilt of 
the offeuder ; and when the pardon is full, it releases the punishment and 

* But when the Court below exceeds its jurisdiction, and disbars an 
attorney for an alleged contempt committed in its presence or before an^ 
other Court, mandamus will lie from the Supreme Court to restore him to 
his oifice. So held in Ex-parte Bradley, 7 Wallace, and in Ex-parte Rob' 
inson — Supra. 

t Article IL, § ± 



l.luts out (.r exist. nee the ,<iuilt. so tluit in tlir vyv oltlic law I he oIlciHlcr 
is as innocent as if he luul never eonunitted the oli'enee. If j;rantetl l)e- 
foie conviction, it prevents any of the penalties and disabilities conse- 
(jnent npon couviction from attaching; if granted after conviction, it re- 
moves the penalties and disabilities, and restores him to all his civil 
rights ; it makes him, as it were, a new man, and gives him a new credit 
and capai-ity. 

There is only this limitation to its oiieration: it does not restore of- 
tices forfeited, or property or interests vested in others in consecpienee of 
the conviction and Judgment." 

The pardon produced by the jietitioner is a full pardon " for all olfences 
by him committed, arising from participation, direct or implied, in the 
Kebellion,''and is subject to certain conditions which have been complied 
with. The effect of this pardon is to relieve the petitioner from all pen- 
alties and disabilities attached to the offence of treason, committed by 
his participation in the Kebellion. So far as that offence is concerned, he 
is thus placed beyond the reach of punishment of any kind. But to ex- 
clude him, by reason of that offence, from continuing in the enjoyment 
of a previously acquired right, is to enforce a punishment for that oftence 
notwithstanding the i)ardon. If such exclusion can be effected by the 
exaction of an expurgatory oath covering the offence, the pardon may be 
avoided, and that accomplished indirectly which cannot be reached by 
direct legislation. It is not within the constitutional power of Congress 
thus to inflict punishment beyond the reach of executive clemency. 
From the petitioner, therefore, the oath required by the act of January 
24th, 1865, could not be exacted, even if that act were not subject to any 
other objection than the one thus stated. 

"'•■4 Blackstone's Commentaries, 402 ; 6 Bacon's Abridgment, tit. Par- 
don ; Hawkins, book 2, c. H7, ^.{J 34 and 54. 

In Carlisle vs. Tiie United States, decided at the December Term, 1872, 
in speaking of the effect of the proclamation of pardon and amnesty, 
made by the President on the 25th of December, 1868, upon the rights of 
certain parties, who had given aid and comfort to the Rebellion, and who 
were claimants before the Court of Claims of the proceeds of cotton 
seized by the officers of the United States and turned over to the agents 
of the Treasury Department, the Court said: "Assuming that they [the 
claimants] are within the terms of the proclamation, the pardon and 
amnesty granted relieve them from the legal consequences of their par- 
ticipation in the Rebellion, and from the necessity of proving that they 
had not thus participated, which otherwise would have been indispens- 
able to a recovery. It is true, the pardon and amnesty do not and cannot 
alter the fa<t that aid and comfort were given l«y the claimants, but they 
fonrir i-Ids, tin < i/<s iif llic (.'nidi io IIk ii< nipUmi tif that fact as an element 
in its jxili/iiuiit, no ri(//its of third ixdiivs huriii;/ iuttrrencd." 

" Tliere has been sonu> ditference of opinion among the members of the 
Court as to cases covered by the pardon of the President, but there has 
been none as to the efl'ect and operation of a pardon in cases where it ap- 
l)lies. All have agreed that the pardon not merely releases the offender 
Irom tlie punishment prescribed for the offence, but that it obliterates in 
legal contemidation the oftence itself" — (16 Wallace, 151.) 



4()4 

It follows, from the views expressed, that the prayer of the petitioner 
must be granted."'' 

The case of R. H. i\Iarr is similar, in its main features, to that of the 
petitioner, and his petition must also be granted. 

And the amendment of the second rule of the Court which requires the 
oath prescribed by the act of January 24th, 1865, to be taken by attor- 
neys and counsellors, having been unadvisedly adopted, must he re- 
scinded. 

And it is so ordered. f 

* The President granted to Garland " a full imrdon and amnesty for all 
offences by him committed arising from participation, direct or implied, 
in the Rebellion." The term amnesty is not found in the Constitution, 
but is generally used to denote the clemency which is extended to a class 
of persons or to a whole community. Pardon is the generic term, and in- 
cludes every species of executive clemency, individual, general, condi- 
tional, and absolute.— (See The Federalist, No. 74 ; U. S. vs. Wilson, 7 
Peters, 150; Ex-parte Wells, 18 How., 315.) 

t In the decision of these two cases, Cummings vs. The State of Mis- 
souri,' and Ex-parte Garland, Justices Wayne, Nelson, Grier, Clifford, and 
Field concurred. Chief Justice Chase, and Justices Swayne, Miller, and 
Davis dissented. Subsequently the Chief Justice expressed his concur- 
rence in the opinion of the majority ; and the decision was followed by 
the entire Court, with the ex(!eption of Mr. Justice Bradley, in the case 
of Pierce vs. Carskadon, decided at the December Term, 1872. — (16 
Wallace, 234.) 



THt: 



CHAllACTEll AND JLTJ:)ICIAL LIFE 



CHIEF JUSTICE CHASE. 



REM Alil^S 



The Dinner of the Associated Alumni of the Pacific, 

IN KESPONSE TO THE SENTIMENT, 

"The Memory of the late Chief Justice Chase," 

Oakland^ Calif oriiia^ July i^^ ySyj, 

MR. JUSTICE FIELD, 

of the Supreme Cotir't of the United States. 



REMARKS. 



I feel highly honored, Mr. President and gentlemen of 
the Associated Alnmni, in being called upon to respond 
to the sentiment proposed. And yet it is difficult, it is 
impossible, in any remarks I may make in the few mo- 
ments allowed to me, to do justice to the character and 
public services of the great Judge and Statesman. Mr. 
Chase was so connected with the public events of the last 
quarter of a century, that no just appreciation of the in- 
tluence he exerted, or of the services he rendered, can be 
had without reciting to a great extent the civil and po- 
litical history of the country during that period. All 
this has been done in numerous addresses and publica- 
tions since his death, and you do not expect me on this 
occasion to go over the same ground. I shall not, there- 
fore, trace the history of that long struggle with the slave 
power, in which he so largely participated, from its com- 
mencement in 1831 to its final triumph in the Emancipa- 
tion Proclamation of President Lincoln and the adoption 
of the great constitutional Amendment, prohibiting for- 
ever slavery and involuntary servitude everywhere within 
the jurisdiction of the United States, except so far as 
reference to that struggle may serve to illustrate the char- 
acter of its greatest hero. Nor shall I. refer, except for 
the same purpose, to that grand system of finance which 
he created and organized, and which carried us through 
the greatest war of modern history, without a shock to 
the public credit, to the marvel and admiration of the 
world. I shall rather confine myself, in the very few re- 
marks I shall make, — and in this I suppose I shall carry 
out your wishes, — to what I know personally of Mr. Chase, 



468 

tiud shall give you the judgmeut I formed of him during 
a period of over eight years, in which I had the honor to 
be his associate. 

Mr. Chase was appointed Chief Justice in December, 
1864. Previous to that time I had frequently met him 
in society in AVashiugton, but I had no relations with 
him beyond those which every member of the Supreme 
Court forms with the heads of the different Executive 
Departments. After that period I was necessarily brought 
in daily association with him during the sessions of the 
court, which usually lasted from four to six months each 
year. And it is with pride that I am able to state that 
during this entire period our relations were of the most 
cordial kind. There was a dignity of manner and a 
majesty of presence about him that repelled familiarity 
and inspired respect and reverence, and yet there was 
at the same time a gentleness and an indescribable grace 
of manner that won almost every one who approached 
him. It is the experience of nearly every one that 
familiarity with a person takes something from the re- 
spect and reverence which we should otherwise entertain 
for him. Great personages generally lose something of 
their greatness in our estimation by contact with them. 
No such result followed from contact with Mr. Chase. No 
man ever left his presence with a feeling less reverent 
than when he entered it. The intimacy of years only 
augmented admiration for his abilities and respect for his 
character. 

A very brief association with the Chief Justice showed 
me that the secret of his great successes lay in his intel- 
lectual integrity. His eminent abilities would have 
secured high official position and power at any time, but 
they alone would never have made him the champion of 
great principles in advance of their general recognition. 
By intellectual integrity, I mean that quality of mind 
which leads one not merely to seek the right and the 



469 

tnitli on all occasions and on all qiu'stions, bnt to roso- 
lut(>ly follow the liglit and truth, when once discovered, 
without regard to personal considerations. It is that 
quality of mind which insures at all times fidelity to one's 
convictions. It was that ciuality of mind which led Mr. 
Chase, when a mere youth, at the beginninj^- of his 
career, to take sides with the party, then insignificant 
in numbers, which opposed the further extension of 
slavery, and sought to limit its existence to the States 
Avhere it then prevailed. He did not wait to give this 
party his co-operation until it had grown sufficiently 
powerful to become an important element in the politics 
of the country. He did not consider as of any conse- 
quence the unpopularity and odium which would attach 
to him from his espousal of the cause of the despised and 
hated set of fanatics as they were then sneeringly called. 
He did not give the slightest weight, as against his con- 
victions, to the fact that wealth, influence, and position 
for him were all on the other side. He never hesitated 
as to his course for a single moment. He believed that 
every human being had a right, until it was forfeited by 
crime, to life, liberty, and the pursuit of happiness. He 
had read in the Great Charter of the Republic, the instru- 
ment which announced to the world the separation of 
the colonies from the mother country and the birth of a 
new nation, that Avith these rights all men were endowed, 
not by constitutions of government, not by legal enact- 
ments, not by decrees of courts, not by regulations of 
societ}^ but by their Creator ; and that to secure these 
rights — not to grant them, not to create them — govern- 
ments are instituted among men ; and to the maintenance 
of the truths, which in that great instrument are declared 
to be self-evident, but which Avcre practically denied by 
the nation, he at that early age devoted his life. 

You and I, Mr. President, remember well the time 
when to be known as favoriner the abolition of slaverv 



470 

was to be sneered at, despised, and persecuted. Such 
treatment had no terrors for this courageous young Chase. 
He had read the story of the persecuted Nazarenes ; how 
they had taken up the emblem of the ignominious death 
of their Master ; how they had painted it on their ban- 
ners, and made it the sign under which they conquered. 
So he, in imitation of them, was willing to take up the 
name of reproach, and under it to fight to the end. And 
so he did, and it was permitted to him to live and see 
the victory, and join with Mr. Lincoln in that crowning 
act of the great President's life, the Emancipation Procla- 
mation. He wrote those words in that instrument in 
which the President invoked upon the act of emancipa- 
tion the considerate judgment of mankind and the gra- 
cious favor of Almighty God. 

The same intellectual integrity accompanied Mr. Chase 
through his whole life, and was frequently exhibited 
under the most trying circumstances while he was on the 
bench. I will mention only one instance which came 
under my own observation ; it is the one which led to 
the first " Legal-Tender " decision. • 

It is undoubtedly true that the fame of Mr. Chase Avill 
rest principally, though not entirely, upon his career as 
Secretary of the Treasury. It was a grand thing to have 
created a system of finance which enabled the country to 
bear the enormous burdens imposed by the war ; greater, 
I venture to say, than were ever borne by any nation 
during a period of equal duration. Mr. Chase very natu- 
rally felt great pride in his system of measures, and in 
the creation of a national currency which followed. 
Among the provisions in the several acts of Congress 
authorizing the issue of United States notes was one 
which made* them a legal-tender for all debts, public and 
private, with certain specified exceptions. This provis- 
ion Mr. Chase thought at the time was necessary, and he 
recommended its adoption by Congress, although he came 



471 

to tliat conclusion with nmcli roluctanco and liositation. 
The ])r()vision was str(niuonsly oj^posed at the time by 
many of the aVilest lawyers of both houses of Congress as 
unnecessary and impolitic, as well as in conflict with the 
Constitution. It was urged with much force that a dol- 
lar in fact and a promise to pay a dollar could not be 
made by legislative power equivalent things ; and that 
the actual value of the notes would depend, by a univer- 
sal law of currency, upon their convertibility into gold 
in the market, and not upon mere Congressional declara- 
tion. The validity of the provision at last found its way 
for adjudication to the Supreme Court of the United 
States, where Mr. Chase presided as Chief Justice. In no 
more embarrassing position was a public man, possessing 
great pride of opinion, ever placed. A large portion of 
the people believed in the constitutionality of the provis- 
ion ; nearly all the Supreme Courts of the loyal States 
had judicially decided in its favor; three of the seven 
Justices then on the Supreme Bench were of the same 
opinion, and regard for consistency strongly urged the 
acquiescence of the Chief Justice. The question was 
argued and reargued, and presented in every possible 
shape to the court. The Chief Justice pondered long 
upon the subject, and looked at it in every possible light. 
He held in his hands the casting vote ; but fidelity to his 
convictions triumphed over his regard for consistency. 
He preferred to be the honest judge rather than the con- 
sistent statesman. He decided against the constitution- 
ality of the provision. He read the opinion of the court, 
and he thus alluded to his own change of views. He 
said : " It is not surprising that, amid the tumult of the 
late civil war and under the influence of apprehensions 
for the safety of the Eepublic almost universal, different 
views, never before entertained by American statesmen 
or jurists, were adopted by many. The time was not 
favorable to considerate reflection upon the constitutional 



4:72 

limits of legislative or executive authority. If power 
was assumed from patriotic motives, the assumption 
found ready justification in patriotic hearts. Many who 
doubted yielded their doubts ; many who did not doubt 
were silent. Some who were strongly averse to making 
government notes a legal-tender felt themselves con- 
strained to acquiesce in the views of the advocates of the 
measure. Not a few who then insisted upon its necessity, 
or acquiesced in that view, have, since the return of 
peace, and under the influence of the calmer time, recon- 
sidered their conclusions, and now concur in those which 
we have just announced." 

Subsequently, when, upon a change in the members of 
the court, a different decision was reached, Mr. Chase re- 
ferred directly to his own action in recommending the 
legal-tender provision, and said that examination and 
reflection under more propitious circumstances had satis- 
fied him that his original opinion was erroneous, and that 
he did not hesitate to declare it. (12 Wallace, 577.) 

I might enumerate other cases, not as striking, but also 
illustrative of his perfect intellectual integrity. But I 
must pass to other traits. 

Equally conspicuous with this integrity w^as the gen- 
erosity of his nature. Whilst the war lasted he was for 
carrying it on energetically, in order that it might be 
speedily closed ; but when the strife of arms had ceased, 
he was for actual and real peace — not one in name only. 
He believed that in the treatment of the South the charity 
which covers a multitude of sins, which the great Apostle 
declared to be the chief est of virtues, was also the highest 
political wisdom and policy. Proscription, persecution, 
and military commissions he hated and loathed in his 
inmost soul. From the time the last shot was fired he 
pleaded for universal amnesty, and to the proclamations 
of the President granting amnesty he gave the most lib- 
eral coustruction. He held Avith the majoritj' of the 



473 

court tli.it the benign prer()<];ative of mercy, vested in the 
President by the Constitution, coukl not be fettered by 
Congressional limitations; that the pardon gave to its 
recipient a new life ; that it blotted out his guilt and 
made him in the eye of the law as innocent as though he 
had never offended, and restored to him all rights of 
propertv not previously invested in others by judicial 
judgment. By his moderate and conciliatory principles, 
and by his open and generous nature, he had won troops 
of friends at the South, and on the day of his death there 
were no more sorrowful hearts in the Republic than those 
which beat in Richmond, the capital of the Confederacy. 
" When Mr. Chase went on the bench there were many 
persons, and among them were some of his warmest 
friends, who doubted whether his previous devotion to 
public affairs had not unfitted him for a judicial position. 
He had for years practically abandoned the profession of 
the law. He had given the better part of his life to the 
public, and was not at the time regarded as one of the 
leading jurists of the country, or even of his own State. 
He was not master of the learning of the common law, 
and he never made any pretensions to such learning. 
He possessed, however, what was far more important for 
his new position — a knowledge of constitiitional and 
public law ; of the workings of our complex system of 
government ; of the true relations between the General 
Government and the States, and of all public questions 
which have interested and divided the minds of the 
country since the adoption of the Constitution. He was 
familiar with all the legislation caused by or growing out 
of the Civil War; and more than all, he possessed a power 
to readily comprehend legal questions and a facility of 
mastering them which could seldom fail to lead to right 
judgments.- 

Whatever doubts on this head were entertained Avhen 
he was appointed Chief Justice, they were speedily dissi- 



474 

pated. He took from the outset his appropriate position 
as the head of the bench, and, at every term, until pros- 
trated by sickness, he gave some of the most important 
opinions of the court. Those opinions relate principally 
to questions growing out of the war, the legislation re- 
specting the currency, the condition of the States during 
the rebellion, the measures taken to restore them to their 
proper relations to the General Government, and the efltect 
of the proclamations of pardon and amnesty by the Presi- 
dent. They are models of their kind. They are written 
in a style at once lucid, terse, and forcible, and they ex- 
hibit great grasp of principles and great power to draw 
logical deductions from them. 

The Chief Justices of the United States have all been 
remarkable men, and were distinguished in public* life 
before they went on the bench. John Jay, the first Chief 
Justice, had been Governor of New York and its Chief 
Justice, President of the Continental Congress, Minister 
to Spain, and Secretary for Foreign Affairs under the 
Confederation. Whilst he Avas Chief Justice of the 
United States he was appointed by Washington Minister 
to England, the appointment not being at the time con- 
sidered incompatible with his judicial position. John 
Kutledge, the second Chief Justice, had been President 
of the colony of South Carolina, Governor of the State, 
and its representative in the Continental Congress. Oliver 
Ellsworth, the third Chief Justice, had been a Judge of 
the Superior Court of Connecticut, and a Senator in 
Congress from that State. While he was Chief Justice 
he was appointed special Minister to France, and con- 
tinued to hold both offices at the same time. John Mar- 
shall, the fourth Chief Justice, had been a member of the 
Executive Council of Virginia, a member of the Legisla- 
ture of that State and of the convention of the State called 
to ratify the Constitution of the United States, Minister 
to France, Member of Congress, and Secretary of State. 



475 

He was Secretary of State wIkmi he was a]t))<)iiit(Ml Cliicl" 
Justice, and lie held both ofHces until the close of tlu; ad- 
ministration of Mr. Adams. Roger B. Taney, the fifth 
Chief Justice, had been Attorney-General of the United 
States and Secretary of the Treasury. Mr. Chase, the 
sixth Chief Justice, had hoou twice Governor of Ohio, 
Senator of the ITnitcnl States from that State, and Secre- 
tary of the Treasury. 

All the Chief Justices, as I have said, were remarkal)le 
men, and were distinguished in public life before they 
were elevated to the bench. But in intellectual power 
and vigor, and ability to grasp great principles, Mr. Chase 
had not his superior among them. 

I should be glad, Mr. President, if I had time, to give 
you some account of the interest Mr. Chase felt in this 
State. Twice he had made arrangements to visit the 
State with me. Once the visit was postponed on account 
of the lateness of the season, and once by his ill health. 
Had he lived, he intended the present summer to pass 
some weeks in Colorado, and he stated to me that he 
might possibly extend his visit to California. He wanted 
to see this State ; he believed that it had a great future 
before it, and that it was destined to exert a mighty in- 
fluence for good upon the people of Asia and of the 
islands of the Pacific. But he believed that the State, to 
fulfil the great mission manifestly assigned by Providence 
to her, must be just in her dealings with those people. 
He beheved, what all right-thinking men do and must be- 
lieve, in the common fatherhood of God and the uni- 
versal brotherhood of man, and that the State Avould 
never accomplish her high destiny until she governed her 
conduct in conformity with this doctrine. 

The private Hfe of Mr. Chase was one of spotless purity. 
In every social relation he was without blemish. He 
carried the Christian virtues with him into his daily life. 
During my whole association with him for over eight 



476 

years, I never heard him utter an unkind word of a single 
human being, although conversation was frequently of 
persons who at that time were assailing his conduct and 
maligning his motives. I doubt whether so much can be 
said truthfully of any other man of this generation. 

That Mr. Chase was ambitious to administer the affairs 
of the nation there is no doubt, and had he been called 
to the Presidency there is every reason to believe that he 
would have rendered great services to the country, and 
added new claims to the admiration of the world. But 
there was enough of fulfilment of great purposes in his 
career to satisfy the ambition of any one. His name is 
indissolubly connected with the greatest events in our 
history, and for his services to his country and to mankind 
he will be remembered and honored so long as that history 
is read among men. 



CENTENNIAL CELEBKATlUN 



OnaNizATioN (IF 1111-; hwmi hwm 



HELD IN THE CITY OF NEW YORK, 



Febkuaky I, 1890. 



AD13KESSKS 



CHIEF JUSTICE FULLER and ASSOCIATE JUSTICE FIELD, 



Delivered at the Metropolitan Opera House, 



TOGETHER WITH THE SPEECH OF 



ASSOCIATE JUSTICE HARLAN, 



Made at the Banquet in the Evening. 



ADDRESS OF CHIEF JUSTICE FULLER. 



Mk. President : 

I rise to express to the New York State Bar Associa- 
tion, aud those who have co-operated witli it, on behalf 
of the Supreme Court of the United States, our appre- 
ciation of the admirable manner in which the Centennial 
Anniversary of the organization of the Judicial Depart- 
ment of the General Government is being celebrated, and 
our sense of the cordial hospitality with which we have 
been welcomed to the metropolitan cit}', where the first 
session of the court was held. Our acknowledgments are 
due for the terms in which that welcome has been ex- 
tended during these exercises, and for the discriminating 
aud eloquent addresses in historical and biographical re- 
view of the court and in exposition of its powers, the 
ends which it secures, and the vital functions which it 
exercises in the masterly constitutional scheme devised to 
perpetuate popular government — addresses worthy of the 
eminent men who have pronounced them, leaders in that 
great fraternity whence the membership of courts is de- 
rived, and upon whose assistance and support all courts 
rely. 

But it is not for me, Avhile tendering these acknowledg- 
ments, to enter u})on those comprehensive reflections sug- 
gested by the occasion, and which should find expression 
on our part. That grateful duty appropriately devolves 
upon one of those veteran jurists, the fruitful labors of 
whose many years have imparted imperishable fame to 
the tribunal and themselves. Three of them (Justices 
Miller, Field and Bradley), still shining in use, find w^ork 
of noble note may yet be done in the cause to which 



480 

their lives have been detlicated ; while aiiother (Justice 
Strong), the recipient of the liveliest attachment on the 
part of his brethren and of the people he has served so 
well, maintains in his well-earned retirement a never-ceas- 
ing interest in the administration of justice. 

And I deem it a peculiar felicity that at a celebration 
conducted under the auspices of the Bar of the State of 
New York — that Bar which has given to the Supreme 
Bench a Jay, a Livingston, a Thompson, a Nelson and a 
Hunt, and whose Blatchford continues most worthily to 
adorn it — I am enabled to introduce, as a representative 
of the court, a member of that same Bar who has reflected 
so much credit upon its training in more than thirty years 
of distinguished judicial service, Mr. Justice Field, of 
California. 



ADDREvSS OF MR. JUSTICE KIKLI). 



Mn. PltKSIDENT AND GkN'I'L1-:mKN : 

As the Chief Justice of tlu; United States has beeu 
pleased to refer to my former coinieetion with the Bar of 
this State aud city. I beg to say that I still claim, with 
pride, membership there, and trust that the claim will be 
allowed. Althi)ugh I remained in this city but a few 
years, swept away by the current which set, in 1849, for 
the Eldorado of the West, dreaming that I might per- 
haps in some way aid in laying the foundations of that 
great Commonwealth which every one saw was to arise 
on the Pacific, I carried with me, and still retain, pleasant 
recollections of the learned Bar of that period, and of its 
great lawyers, to whom I looked up with admiration, 
George Wood, George Griffin, Daniel Lord, Francis B. 
Cutting, Benjamin F. Butler, John Duer, Charles O'Conor, 
James B. Gerard, James T. Brady and others — names 
never spoken of throughout our laud without profound 
respect. In m}' subsequent life, in the varied experiences 
with which it has been marked, and with the extended 
acquaintance I have had with the legal prt)fession, I have 
always regarded them as among the ablest and most 
learned of great advocates. 

The Chief Justice in behalf of himself and his asso- 
ciates has expressed in fitting terms their high apprecia- 
tion of the courtesy extended to them by the Bar Associa- 
tion of the State of New^ York, the remembrance of w^hich 
they will carry through life. He has also expressed the 
pleasure which they have felt, in common with all here 
present, in listening to the addresses made upon the 



482 

organization of the Siipreme Court, and its plac6 in the 
constitutional system of the United States, and upon the 
lives and careers of the Justices who, by their expositions 
of the Constitution and their maintenance of its princi- 
ples, have shed lustre upon that tribunal. But far beyond 
these eloquent discourses, and beyond the power of ex- 
pression in words, is the eulogium presented by this vast 
assembly, — composed of great laAvyers, eminent Judges, 
and men distinguished in different departments of life for 
their honorable public services, — gathered from all parts 
of our country, to celebrate the centennial anniversary of 
the court's organization and to listen to the story of its 
labors during the hundred years of its existence, — an 
assembly presided over by one who has held the high 
office of President of the United States. 

In every age and with every people there have been 
celebrations for triumphs in war — for battles won on land 
and on sea — and for triumphs of peace, such as the open- 
ing of new avenues of commerce, the discovery of new 
fields of industry and prosperity, the construction of 
stately temples and monuments, or grand edifices for the 
arts and sciences, and for the still nobler institutions of 
charity. 

But never until now has there been in any country a 
celebration like this, to commemorate the establishment 
of a judicial tribunal as a co-ordinate and permanent 
branch of its government. The unobtrusive labors of 
such a department, the simplicity of its proceedings, un- 
accompanied by pomp or retinue, and the small number 
of persons composing it, have caused it to escape rather 
than to attract popular attention and applause. 

This celebration had its inspiration in a profound rev- 
erence for the Constitution of the United States as the sure 
and only means of preserving the Union, with its inesti- 
mable blessings, and the conviction that this tribunal has 
materially contributed to its just appreciation and to a 



483 

ready obedience to its iiutliority. For that Constitution 
the deepest reverence may well be entertaincul. Its adop- 
tion was essential to that dual <^overnnient, by which 
alone free institutions can Ixi maintained in .a conntrv so 
widely extended as ours, embracing every variety of cli- 
mate, furnishing different products, supporting different 
industries, and having in different sections people of 
different habits and pursuits, and in many cases of ditl'er- 
ent religious f;dths. 

Of this complex government — of its oi-igin and opera- 
tion — I may be pardoned if I say a few words, before 
speaking of its judicial department and of the peculiar 
functions which distinguish it from the judicial depart- 
ments of all other countries, and before s])eaking of the 
necessity of legislation, that its tribunal of last resort may 
be as useful in the future as we believe it has been in the 
past. 

Experience has shown that in a country of great terri- 
torial extent and varied interests, peace and lasting pros- 
perity can exist with a civilized people only when local 
affairs are controlled by local authority, and at the same 
time there are lodged in the general government of the 
country such sovereign powers as will enable it to regu- 
late the intercourse of its people with foreign nations, 
and between the several communities, protect them in all 
their rights in such intercourse, defend the country 
against invasion and domestic violence, and maintain the 
supremacy of the laws throughout its whole domain. 
This principle the framers of the Constitution acted 
upon in establishing the government of the Union, by 
leaving unimpaired the power of the States to control 
all matters of local interest, and creating a new gov- 
ernment of sovereign powers for matters of general and 
national concern. They thus succeeded in reconciling 
local self-government — or home-rule, as it is termed — 
with the exercise of national sovereignty for national 



484 

purposes. Under this dual goveruuieiit each State may 
pursue the policy best suited to its people aud re- 
sources, though uulike that of another State. Aud yet 
there can be no violent conflicts so long as the central 
government exercises its rightful power, and secures 
them against foreign invasion and internal violence, and 
extends to the citizens of each State protection in the 
others. The adaptation of this form of government for 
a far more extended territory than that existing at its 
adoption, has been demonstrated by the addition to the 
Union of new States with interests and resources in many 
respects essentially difi'erent from those of the original 
States, but which from experience of its benefits aud their 
instinctive yearning for nationality, have formed a like 
attachment to the Constitution. 

The prosperity which has followed this distribution 
of governmental powers not only attests the wisdom of 
the framers of the Constitution, but transcends even their 
highest expectations. In the history of no people — ancient 
or modern — has anything been known at all comparable 
with the progress of the countrj' since that time in the 
development of its resources, in the addition to its ma- 
terial wealth, in its application of science to works of 
public utility, in the increase of its po[)ulation, and in 
the general contentment and happiness of its people. The 
predictions of the most enthusiastic as to its growth and 
prosperity never equaled the stupendous reality. 

The Ccmstitution of the United States, which, in or- 
daining this complex government, has been productive 
of such vast results, was the outgrowth of institutions 
and doctrines inherited from our ancestors and applied 
under the new conditions of our country. A distin- 
guished English statesman has designated it as the most 
wonderful product struck off at a given time by the 
brain and purpose of man ; but this designation is only 
true as to the character of the instrument. Though it 



4:85 

rocoived definite form from the labors of tlio Convention 
of 1787, it was, in its division of governmental powers 
into three departments, and in its guaranties of private 
rights, the product of centuries of experience in the 
government of England. It had its roots deep in the 
past, as all enduring institutions h;iv<\ The colonists 
brought with them the great principles of civil liberty, 
which had been established there after many a con- 
flict with the Crown, and Avhicli Avere proclaimed in 
Magna Charta and in the Declaration of Rights. Our 
country was in this respect the heir of all thcJ ages. 
Not a blow was struck for liberty in the Old World that 
did not wake an echo in the forests of the New. Every 
vantage ground gained there on its behalf was courage- 
ously and stubbornly held here. Thus liberty, with 
all its priceless blessings, passed from country to country, 
from hemisphere to hemisphere, and from generation to 
generation. Claiming this inheritance, the Continental 
Congress, assembled in 1774 to provide measures to resist 
the encroachments of the British Crown, declared that 
the inhabitants of the colonies were entitled, " by the im- 
mutable laws of nature, the principles of the English 
Constitution and their several charters, to all the rights, 
privileges and immunities of free and natural-born sub- 
jects within the realm of England." And when a subse- 
quent Congress, in 1776, declared the independence of the 
colonies, it proclaimed that the rights of man to life, to 
liberty and to the pursuit of happiness — having then 
risen to a just appreciation of their true source — were 
held by him, not as a boon from king or parliament, or 
as the grant of any charter, but as the endowment of 
his Creator, and that to secure these rights — not to grant 
them — governments are instituted among men, deriving 
their just powers from the consent of the governed. The 
different communities, which, by the separation from the 
mother country, had ceased to be colonies and had be- 



4S6 

come States, when framing new constitutions to conform 
to their new conditions, inserted guaranties for the pro- 
tection of these rights, with other provisions required for 
the government of free commonwealths. 

It was foreseen, however, by members of the Conti- 
nental Congress and by thoughtful patriots throughout 
the country, that when the independence of the colonies 
was recognized by the mother country, as sooner or later 
it must be, they would be at once surrounded by difficul- 
ties and dangers, threatening their peace and even their 
existence as independent communities. It was plain to 
them that, without some common protecting power, dis- 
putes from conflicting interests and rivalries, incident to 
all neighboring States, would arise between them, which 
would inevitably lead to armed conflicts and invite the 
interference of foreign powers, ending in their conquest 
and subjection ; and that all that was gained by the ex- 
perience of centuries and by the revolution on behalf of 
the rights of man and free government would be lost. 

To provide against these apprehended dangers a fed- 
eration or league between the States was proposed as a 
measure of common defense and protection. Articles of 
Confederation were accordingly framed and submitted to 
the legislatures of the States, and finally adopted in 1781. 
But, as we all know, these articles provided no mode 
of carrying into effect the measures of the Confed- 
eration, or even the treaties made by it. They estab- 
lished no tribunal to construe its enactments and enforce 
their provisions. Its power was simpl}^ that of recom- 
mendation to the States, its framers appearing to have 
believed that the States had only to know what was 
necessary, in the judgment of Congress, for the general 
welfare, to provide adequate means for its accomplishment. 
A government which could only enforce its enactments 
upon the approval of thirteen distinct sovereignties nec- 
essarily contained within itself the seeds of its dissolu- 



487 

tion : it could not j^ivo tlie f:;on(>val protf^ctioii uoodcd. 
Having no power to exact obedience or to pnnisli for 
disobedience to its advisory ordinances, its recommenda- 
tions were disregarded not only by States but by individ- 
uals. 

But though the government of the Confederation failed 
to accomplish the purpose of its crention, its experience 
was of inestimable value ; it made clear to the whole 
country what was essential in ii general government in 
order to give the needed security and protection, and 
thus prepared the way for the adoption of the Constitu- 
tion of the United States. So out of the necessities of tlu^ 
times, to preserve whatever of freedom had been gained 
in the past, — gained after years of bitter experience, both 
in the mother country and in our owu,^ — and to secure its 
full fruition in tlie future, that instrument was framed 
and adopted. By it the great defects of the Confederation 
were avoided, and a government created with ample 
powers to give to the States and to all their inhabitants the 
needed security — a government taking exclusive charge 
of our foreign relations, representing the people of all the 
States in that respect as one nation, with power to de- 
clare war, make peace, negotiate treaties and form alli- 
ances, and at the same time securing a re]uiblican gov- 
ernment to each State and freedom of intercourse between 
the States, equality of privileges and immunities to citi- 
zens of each State in the several States, uniformity of 
commercial regulations, a common currency, a standard 
of weights and measures, one postal system, and such 
other matters as concerned all the States and their peojile. 
By the union of the States, which had its origin in the 
necessities of the war of the Revolution, which was de- 
clared in the Articles of Confederation to be perpetual, 
but which was rendered perfect only under the Constitu- 
tion, the political body known as the United States Avas 
created and took its place in the family of nations. With 



488 

that union the States became, in their relations to foreij^n 
countries and their citizens or subjects, one nation, and 
their people became one jjeople, with a government de- 
signed to be perpetual. A dissolution of the Union would, 
indeed, remit the States to their original position of sepa- 
rate communities, and the United States ceasing to be a 
])olitical body would pass from the family of nations. But 
such a possibility was never considered by the framers of 
the Constitution ; no provisions are found within it con- 
templating such a result. As aptly stated by Chief Jus- 
tice Chase, "the Constitution in all its provisions looks 
to an indestructible Union composed of indestructible 
States." Its government was clothed Avitli the means to 
give effect to all its measures, which none have been 
able during the century of its existence successfully to 
resist. In the late civil war its strength was subjected 
to the severest test. But notwithstanding the immense 
forces wielded by the Confederate States, the extent of 
territory they controlled, and the vast numbers which rec- 
ognized their authority, the government of the Union 
never for one hour renounced its claim to supreme au- 
thority over the whole country, and to the allegiance of 
every citizen thereof. And when the contest ended — 
a contest which was the most tremendous and awful 
civil war known in history, — though made resplendent 
with unprecedented acts of heroic courage on both 
sides — the armies of the Confederate States were 
scattered, and their whole government overthrown. 
Whilst the fiery courage and martial spirit of their 
people extorted our admiration, — we are all of the same 
warrior race, — their attempts to break the Union only 
disclosed the immovable solidity of its foundations and 
the massive strength of its superstructure. It was the 
dash of the tempestuous waves against the eternal rock. 
And, now, in all its Avide domain, in respect to every 
right secured by the Constitution, no citizen of the 



489 

Ilo]mblic is be3'on(l its ])owor or so liniiiblo as to l)o 
beueath its protection. We can now confidently look 
forward to the time when the country will tnabrace hun- 
dreds of millions of people, and ar(; justiticd in believing 
that the States will be united thou, as now, by kindred 
sentiments, and common prid(> in the j:;reatness and the 
glory of the country. We have an abiding faith that 
when we shall have surpassed — as we are destined to 
do — in the vastness of our empire, as in the civilization 
and wealth of our people, ancient Rome in her greatest 
days, Ave shall continue to be, for all national purposes, 
as now, one nation, one people, one power. 

The crowning defect in the government under the Ar- 
ticles of Confederation was the absence of any judicial 
power ; it had no tribunal to expound and enforce its 
laws. 

In no one particular was the difference between that 
government and the one which superseded it more marked 
than in its Judicial Department. The Constitution de- 
clares not only in what courts the judicial power of the 
United States shall be vested, but to what subjects it shall 
extend. It is vested in one Supreme Court and in such 
inferior courts as Congress may from time to time ordain 
and establish, and it extends not only to all cases affecting 
ambassadors, other public ministers and consuls ; to all 
cases of admiralty and maritime jurisdiction ; to contro- 
versies to wdiich the United States shall be a party ; to 
controversies between tw^o or more States ; between a 
State and citizens of another State ; between citizens of 
different States ; between citizens of the same State claim- 
ing lands under grants of different States ; and between a 
State, or the citizens thereof, and foreign States, citizens 
or subjects ; but also to all cases in law and equity arising 
under the Constitution, the law-s of the United States and 
treaties made under their authority. Cases are considered 
as arising under the Constitution, laws and treaties of the 



490 

United States, whenever any question respecting that Con- 
stitution and those laws or treaties is presented in such 
form that the judicial power can act upon it^ — that is to 
say, when a right or claim is asserted for the maintenance 
of which a construction of that Constitution, or of a law 
or a treaty of the United States, is required. 

No government is suited to a free people where a judicial 
department does not exist with power to decide all judi- 
cial questions arising upon its constitution and laws. 

The Judicial Department established under the Con- 
stitution is thus coextensive ; it reaches to every judicial 
question which arises under the Constitutiou, treaties, 
and laws of the United States. It has devolved upon it, 
when such a question arises, beyond the ordinary func- 
tions of a judicial department under a single, as distin- 
guished from a dual, government, the duty of determin- 
ing whether the delegation of powers to Congress on the 
one hand, or the reservation of powers to the States on the 
other, is passed by either, and thus of preventing jarring 
conflicts. And in two particulars it is distinguished from 
the judicial department of any other country ; one, in that 
it can summon before it the States of the Union, and ad- 
just controversies between them, going even to the extent 
of determining disputes as to their boundaries, rights of 
soil and jurisdiction ; the other, in that it can determine 
the validity or invalidity of an act of Congress or of the 
States, when the validity of either is assailed in litigation 
before it. 

Controversies between different States of the world re- 
specting their boundaries, rights of soil, aud jurisdiction 
have been the fruitful source of irritation between their 
people, and not unfrequently of bloody conflicts. The 
history of many of the principalities of Germany in the 
fifteenth century is a history of desolating wars over dis- 
puted boundaries. The license, disorders and crimes usu- 
ally attendant upon border warfare were the cause of 



491 

widespread misery, until the (^stid)lislinuMit under INFaxi- 
milian of an Imperial chamber for the settlement of such 
controversies, which brought out of chaos order and tran- 
quillity in the (Jerniaii Empire. 

Between the States in this country, under the Articles 
of Confederation, there were also numerous conflicts as 
to boundaries and consequent rights of soil and jurisdic- 
tion. They existed between Pennsylvania and Virginia ; 
between Massachusetts and N(nv Hampshire ; and between 
Virginia and New Jersey. By the judicial article of the 
Constitution all such controversies are withdrawn from 
the arbitrament of war to the arbitrament of law. Thus, 
for the first time in the history of the world is the spec- 
tacle presented of a provision embodied in the funda- 
mental law of a country, that controversies between 
States — still clothed, for purposes of internal government, 
with the powers of independent communities — shall be 
submitted to the peaceful and orderly modes of judicial 
procedure for settlement — controversies which Lord 
Chancellor Hardwicke, in the case of Penn v. Lord Balti- 
more, said were worthy the judicature of a Roman senate 
rather than of a single judge. 

The practical application of the power of the Supreme 
Court in this particular has been fruitful of happy results. 
In 1837, it settled a disputed boundary between lihode 
Island and Massachusetts ; in 1849, it brought to an ad- 
justment the disputed line between Missouri and Iowa ; 
and, in 1870, it settled the controversy between Virginia 
and West Virginia as to jurisdiction over two counties 
within the asserted boundaries of the latter. Certainly 
no provision of the Constitution can be mentioned, more 
honorable to the country or more expressive of its Chris- 
tian civilization, than the one which provides that con- 
troversies of this character shall be thus peacefully settled. 
In determining them, the court is surrounded by no 
imperial guard ; l)y no bands of janissaries ; it has with 



492 

it only the moral judgment and the invisible power 
of the people. Should the necessity arise, that invisible 
power would soon develop into a visible and irresistible 
force. 

The power of the court to pass upon the conformity 
with the Constitution of an act of Congress, or of a 
State, and thus to declare its validity or invalidity, or 
limit its application, follows from the nature of the Con- 
stitution itself, as the supreme law of the land, — the sep- 
aration of the three departments of government into leg- 
islative, executive and judicial, — the order of the Con- 
stitution, — each independent in its sphere, and the specific 
restraints upon the exercise of legislative powers con- 
tained in that instrument. In all other countries, except 
perhaps Canada under the government of the Dominion, 
the judgment of the legislature as to the compatibility of 
a law passed by it with the constitution of the country 
has been considered as superior to the judgment of the 
courts. But under the Constitution of the United States, 
the Supreme Court is independent of other departments 
in all judicial matters, and the compatibility between the 
Constitution and a statute, whether of Congress or of a 
State, is a judicial and not a political question, and there- 
fore is to be determined by the court whenever a litigant 
asserts a right or claim under the dispvitedact for judicial 
decision. 

This power of that court is sometimes characterized by 
foreign writers and jurists'as a unique provision of a dis- 
turbing and dangerous character, tending to defeat the 
popular will as expressed by the legislature. In thus char- 
acterizing it they look at the power as one that may be 
exercised by way of supervision over the general legisla- 
tion of Congress, determining the validity of an enact- 
ment in advance of its being contested. But a declara- 
tion of the unconstitutionality of an act of Congress or 
of the States cannot be made in that way by the Judicial 



493 

Dcpjirtmoiit. The unconstitutioiKility ol" :iii ;u-t caiuiot 
be prououuced except as requii-ecl for the deteniiination 
oi" contested litigation. No such authority as su))posed 
wouhl be tolerated in this country. It would make the 
Su])renie Court a third house of (/ongixiss, and its con- 
clusions would be sul)ject to all the inlirniities of general 
legislation. 

/The limitations upon legislative powx'r, arising from 
the nature of the Constitution and its specific restraints 
in favor of private rights, cannot be disregarded without 
conceding that the legislature can change at will the form 

of our government from one of limited to one of uulim- 

/ 
ited powers. / Whenever, therefore, any court, called upon 

to construe an enactment of Congress or of a State, the 
validity of which is assailed, finds its provisions incon- 
sistent with the Constitution, it must give effect to the lat- 
ter, because it is the fundamental law of the whole people, 
and, as such, superior to any law of Congress or any law of 
a State. Otherwise the limitations upon legislative power 
expressed in the Constitution or implied by it must be 
considered as vain attempts to control a power which is 
in its nature uncontrollable. 

This unique power, as it is termed, is therefore not only 
not a disturbing or dangerous force, but is a necessary 
consequence of our form of government. Its exercise 
is necessary to keep the administration of the govern- 
ment, both of the United States and of the States, in all 
their branches, within the limits assigned to them by 
the Constitution of the United States, and thus secure 
justice to the people against the unrestrained legislative 
will of either — the reign of law against the sway of arbi- 
trary power. 

As to the decisions of the Supreme Court respect- 
ing the constitutionality of acts of Congress or of the 
States, they have, as a general rule, been recognized as 
furthering the great purposes of the Constitution ; — as 



494 

where, iu Gihhont< v. Ogden, the court dechiretl the free- 
dom of the navigable waters of New York to all vessels, 
against a claim of an exclusive right to navigate them by 
steam vessels under a grant of the State to particular 
individuals ; — or where, as in Dai'tnwvth College v. Wood- 
icard, the court enforced the prohibition of the Constitu- 
tion against the impairment by the legislation of a State 
of the obligation of a contract, declaring void an act of 
New Hampshire which altered the charter of the college 
in essential particulars, and holding that the charter 
granted to the trustees of the college was a contract within 
the meaning of the Constitution and protected by it : and 
that the college was a private charitable institution not 
under the control of the legislature ; — or where, as in 
Brown v. Maryland, the court declared that commerce 
with foreign nations could not, under a law of the State, 
be burdened with a tax upon gocxis imported, before they 
were broken in bulk, though the tax was imposed in the 
form of a license to sell ; — or where, as in West07i v. Charles- 
ton, the court declared that the bonds and securities of the 
United States could not be subjected to taxation by the 
States, and thus the credit of the United States impaired ; — 
or where, as in McCuUoch v. Maryland and O shorn v. Bank 
of the United States, the court denied the authority of the 
States, by taxation or otherwise, to impede, burden, or in 
any manner control the means or measures adopted by 
the government for the execution of its powers ; — or 
where, as in Hall v. De Cuir ; The Wabash Railway Co. v. 
Illinois ; The Philadelphia and Southern Steamship Co. v. 
Pennsylvania, and other cases determined in the last 
quarter of a century, the court has removed barriers to 
interstate and foreign commerce interposed by State leg- 
islation. 

And so in the great majority of cases in which the va- 
lidity of an act of Congress or of a State has been called 
iu question, its decisions have been in the same direction, 



495 

to n])liol(l and carry oiit the provisions ol" tlio (constitution. 
In some instances the court, in the exercise of its powers 
in this respect, may have m.-ide mistakes. The judges 
would he more! than liuman it' tliis wvvo not so. They 
have never chdmed infalHbility ; they have often differed 
among themselves. All they have evei- asserted is, that 
they have striven to the utmost of their abilities to be 
right, and to perform the functions with which they are 
clothed, to the advancement of justice and the good of 
the country. 

In res})ect to their liability to err in tluiir conclusions 
this may be said — that in aihlition to the desire which 
must be ascribed to them to be just — the conditions under 
which they perform their duties, the publicity of their pro- 
ceedings, the discussions before them, and the public at- 
tention which is drawn to all decisions of general interest, 
tend to prevent any grave departure from the purposes 
of the Constitution. And, further, there is this correc- 
tive of error in every such departure ; it will not fit har- 
moniously with other rulings ; it will collide with them, 
and thus compel explanations and qualifications until 
the error is eliminated. Like all other error it is bound 
to die ; truth alone is immortal, and in the end will assert 
its rightful supremacy. 

And now, with its history in the century past, what is 
needed, that the Supreme Court of the United States 
should sustain its character and be as useful in the century 
to come ? I answer, as a matter of the first considera- 
tion, — that it should not be overborne with work, and 
by that I mean it should have some relief from the 
immense burden now cast upon it. This can only be 
done by legislative action, and in determining what 
measures shall be adopted for that purpose Congress 
wdll undoubtedly receive with favor suggestions from 
the Bar Associations of the country. The Justices al- 
ready do all in their power, for each one examines every 



496 

case and passes his iudiviJual jadguieut upon it. No case 
in the Supreme Court is ever referred to any one Justice, 
or to several of the Justices, to decide and report to the 
others. Every suitor, however humble, is entitled to and 
receives the judgment of every Justice upon his case. 

In considering this matter it must be borne in mind 
that, in addition to the great increase in the number of 
admiralty and maritime cases, from the enlarged com- 
merce on the seas, and on the navigable waters of the 
United States, and in the number of patent cases from 
the multitude of inventions brought forth by the genius 
of our people, calling for judicial determination, even to 
the extent of occupying a large portion of the time of 
the court, many causes, which did not exist upon its 
organization or during the first quarter of the century, 
have added enormously to its business. Thus by the new 
agencies of steam and electricity in the movement of 
machinery and transmission of intelligence, creating rail- 
ways and steamboats, telegraphs and telephones, and 
adding almost without number to establishments for the 
manufacture of fabrics, transactions are carried on to an 
infinitely greater extent than before between different 
States, leading to innumerable controversies between their 
citizens, which have found their way to that tribunal for 
decision. More than one-half of the business before it for 
years has arisen from such controversies. 

The facility with which corporations can now be 
formed has also increased its business far beyond what 
it was in the early part of the century. Nearly all enter- 
prises requiring for their successful prosecution large in- 
vestment of capital are conducted by corporations. They, 
in fact, embrace every branch of industry, and the wealth 
that they hold in the United States equals in value four- 
fifths of the entire property of the country. They carry 
on business with the citizens of every State as Avell as with 
foreign nations, and the litigation arising out of their 



497 

transactions is ouornious, j^ivinf^j viso to every possible 
question to which the jurisdiction ol" th(^ Federal courts 
extends. 

The numerous <ji;rants of the public domain, embracing 
hundreds of millions of acres, in aid of the construc- 
tion of railways, also for common schools, for public 
buildings and institutions of learning, have produced 
a great variety of questions of much intricacy and diffi- 
cult3\ The discovery of mines of the precious metals, 
in our new possessions on the Pacific Coast, and the 
modes adopted for their development, have added many 
more. The legislation required by the exigencies of 
the civil war, and following it, and the constitutional 
amendments which were designed to give farther se- 
curity to personal rights, have brought before the court 
questions of the greatest interest and importance, call- 
ing for the most earnest and laborious consideration. 
Indeed, the cases which have come before this court, 
springing from causes which did not exist during the 
first quarter of the century, exceed, in the magnitude 
of the property interests involved, and in the impor- 
tance of the public questions presented, all cases brought 
within the same period before any court of Christendom. 

Whilst the constitutional amendments have not changed 
the structure of our dual form of government, but are ad- 
ditions to the previous amendments, and are to be consid- 
ered in connection with them and the original Constitution 
as one instrument, they have removed from existence an 
institution which was felt by wise statesmen to be incon- 
sistent with the great declarations of right upon which 
our government is founded ; and they have vastly en- 
larged the subjects of Federal jurisdiction. The amend- 
ment declaring that neither slavery nor involuntary servi- 
tude, except as a punishment for crime, shall exist in the 
United States or any place subject to their jurisdiction, not 
only has done away with the slavery of the black man, as 



498 

it then existed, but interdicts forever the shivery of any 
man, and not only slavery, but involuntary servitude — 
that is, serfage, vassalage, villeinage, peonage, and all other 
forms of compulsory service for the mere benefit or pleas- 
ure of others. As has often been said, it was intended to 
make every one born in this country a free man and to 
give him a right to pursue the ordinary vocations of life 
without other restraint than such as affects all others, and 
to enjoy equally with them the fruits of his labor. The 
right to labor as he may think proper without injury to 
others is an element of that freedom which is his birth- 
right. 

The amendment, declaring that no State shall make 
or enforce any law which shall abridge the privileges or 
immunities of citizens of the United States, nor deprive 
any person of life, liberty, or property without due pro- 
cess of, nor deny to any person within its jurisdic- 
tion the equal protection of the laws, has proclaimed that 
equality before the law shall forever be the governing 
rule of all the States of the Union which every person how- 
ever humble ma}^ invoke for his protection. In enforc- 
ing these provisions, or considering the laws adopted for 
their enforcement, or laws which are supposed to be in 
conflict with them, difficult and far-reaching questions 
are presented at every term for decision. 

Up to the middle of the present century the calendar 
of the court did not average 140 cases a term, and never 
amounted at any one term to 300 cases ; the calendar of 
the present term exceeds 1,500. In view of the condi- 
tion of the court, — its crowded docket — the multitude 
of questions constantly brought before it of the greatest 
and most extended influence — surely it has a right to 
call upon the country to give it assistance and relief. 
Something must be done in that direction and should 
be done speedily to prevent the delays to suitors now 
existing. To delay justice is as pernicious as to deny 



499 

it. One of the most precious articles of Magna Cliarta 
was that in Avliicli the King declared that he would not 
deny nor delay to any man justice or right. And assuredly 
what the barons of England wrung from their monarch, 
the people of the United States will not refuse to any 
suitor for justice in their tribunals. 

Furthermore, I hardly need say, that, to retain the re- 
spect and confidence conceded in the past, the court, 
whilst cautiously abstaining from assuming powers 
granted by the Constitution to other doi)artments of the 
government, must unhesitatingly and to the best of its 
ability enforce, as heretofore, not only all the limita- 
tions of the Constitution upon the federal and state 
governments, but also all the guarantees it contains of 
the private rights of the citizen, both of person and of 
property. As population and wealth increase — as the 
inequalities in the conditions of men become more and 
more marked and disturbing — as the enormous aggrega- 
tion of wealth possessed by some corporations excites 
uneasiness lest their power should become dominating in 
the legislation of the country, and thus encroach upon 
the rights or crush out the business of individuals of small 
means — as population in some quarters presses upon the 
means of subsistence, and angry menaces against order 
find vent in loud denunciations — it becomes more and 
more the imperative duty of the court to enforce with a 
firm hand every guarantee of the Constitution. Every 
decision weakening their restraining power is a blow to 
the peace of society and to its progress and improvement. 
It should never be forgotten that protection to property 
and to persons cannot be separated. Where property is 
insecure, the rights of persons are unsafe. Protection to 
the one goes with protection to the other ; and there can 
be neither prosperity nor progress where either is uncer- 
tain. 

That the Justices of the Supreme Court must possess the 



500 

ability and learniug required by the duties of their office, 
and a character for purity and integrity beyond reproach, 
need not be said. But it is not sufficient for the perform- 
ance of his judicial duty that a judge should act honestly 
in all that he does. He must be ready to act in all cases 
presented for his judicial determination with absolute fear- 
lessness. Timidity, hesitation, and cowardice in any pub- 
lic officer excite and deserve only contempt, but infinitely 
more in a judge than in any other, because he is appointed 
to discharge a public trust of the most sacred character. 
To decide against his conviction of the law or judgment 
as to the evidence, whether moved by prejudice or passion, 
or the clamor of the crowd, is to assent to a robbery as 
infamous in morals and as deserving of punishment as 
that of the highwayman or the burglar ; and to hesitate 
or refuse to act when duty calls is hardly less the subject 
of just reproach. If he is influenced by apprehensions 
that his character will be attacked, or his motives im- 
pugned, or that his judgment will be attributed to the 
influence of particular classes, cliques or associations, 
rather than to his own convictions of the law, he will fail 
lamentably in his high office. 

To the intelligent and learned Bar of the country the 
judges must look for their most effective and substantial 
support. Its members appreciate more than any other 
class the difficulties and labors and reponsibilities of the 
judicial office ; and whilst the most severe and unsparing 
of critics, they are in the end the most just in their judg- 
ments. If they entertain for the judges respect and con- 
fidence ; if they accord to them learning, integrity, and 
courage ; the general public will not be slow in accepting 
their appreciation as the true estimate of the judges' 
character. Sustained by this professional and public 
confidence, the Supreme Court may hope to still further 
strengthen the hearts of all in love, admiration, and rever- 
ence for the Constitution of the United States, the noblest 
inheritance ever possessed by a free people. 



ADDRESS OF MR. JUSTICP: HARLAN, 

At the Banquet iu the eveuiug, to the toast, " The Supreme 
Court of the United States." 



Mil. PllESIDENT : 

The toast yoii have read suggests many reflections of 
interest. But when an attempt is made to give shape to 
them, in my own mind, the fact confronts me tliat every 
line of thought most appropriate to this occasion has 
been covered by addresses delivered, in another place, 
by distinguished members of the Bar, and by an eminent 
jurist responding on behalf of the Supreme Court of the 
United States. They have left nothing to be added 
respecting the organization, the history, the perso»mel, 
or the jurisdiction of that tribunal. It is well that those 
addresses are to be preserved in permanent form for the 
delight and instruction of all that are to come after us ; 
especially those who, as judges and lawyers, will be con- 
nected with the administration of justice. I name the 
lawyers with the bench, because upon them, equally with 
the judges, rests the responsibility for an intelligent de- 
termination of causes in the courts, whether relating to 
public or to private rights. As the bench is recruited from 
the Bar, it must always be that as are the lawyers in any 
given period, so, in the main, are the courts before which 
they appear. Upon the integrity, learning and courage 
of the Bar largely depends the welfare of the country of 
which they are citizens ; for, of all members of society, 
the lawyers are best qualified by education and training 
to devise the methods necessary to protect the rights of 
the people against the aggressions of power. But they 



502 

are, also, iu the best sense, ministers of justice. It is 
not true, as a famous lawyer once said, that an advocate, 
in the discharge of his duty, must know only his client. 
He owes a duty to the court of which he is an officer, 
and to the community of which he is a member. Above 
all, he owes a duty to his own conscience. He miscon- 
ceives his high calling if he fails to recognize the fact that 
fidelity to the court is not inconsistent with truth and 
honor, or with a fearless discharge of duty to his client. 
It need scarcely be said in this presence that the Ameri- 
can Bar have met all the demands that the most scru- 
pulous integrity has exacted from gentlemen in their 
position. 

In the addresses to-day much was said of the Supreme 
Court of the United States that was gratifying as well to 
those now members of that tribunal as to all who take 
pride in its history. But, Mr. President, whatever of 
honor has come to that court for the manner in which it 
has discharged the momentous trust committed to it by 
the Constitution must be shared by the Bar of Amer- 
ica. " Justice, sir," (I use the words of Daniel Webster,) 
"is the great interest of man on earth. It is the ligament 
which holds civilized beings and civilized nations to- 
gether. Wherever her temple stands, and so long as it 
is duly honored, there is a foundation for social security, 
general happiness, and the improvement and progress of 
our race. And whoever labors on this edifice with use- 
fulness and distinction, whoever clears its foundations, 
strengthens its pillars, adorns its entablatures, or con- 
tributes to raise its august dome still higher in the skies, 
connects himself, in name and fame and character, with 
that which is and must be as durable as the frame of 
human society." The Temple of Justice which has been 
reared in this fair land is largely the w^ork of our lawyers. 
If there be security for life, liberty and property, it is be- 
cause the lawyers of America have not been unmindful 



503 

of their oblif^atioiis as luinistors of justice. Hearcli tlie 
history of every State in the Uuiou, and it will be found 
that they have been foremost in all movements having 
for their object the maintenance of the law against 
violence and anarchy ; the prestsrvation of the just rights 
both of the government and of tlie people. 

I read recently a brief speech by Mr. Gladstone, at a 
banquet given many years ago in honor of the great 
French advocate, Berryer. He had visited the south 
of Europe, and witnessed there much cruel oppression 
of the people. The executive power, he said, not only 
had broken the law, but had established in its place a 
system of arbitrary will. He found, to use his own 
words, that the audacity of tyranny, which had put 
down chambers and municipalities and extinguished the 
press, had not been able to do one thing — to silence the 
Bar. He, himself, heard lawyers in courts of justice, un- 
dismayed by the presence of soldiers, and in defiance of 
despotic power, defend the cause of the accused with a 
fearlessness that could not have been surpassed. He was 
moved, on that occasion, to say of the English Bar, what 
may be truly said of the American Bar, that its members 
are inseparable from our national life — from the security 
of our national institutions. 

It has been said of some of the judgments of the Su- 
preme Court of the United States that they are not 
excelled by any ever delivered in the judicial tribunals 
of any country. Candor, however, requires the conces- 
sion that their preparation was preceded by arguments 
at its bar of which may be said, what Mr. Justice Buller 
observed of certain judgments of Lord Mansfield, that 
they were of such transcendent power that those who 
heard them were lost in admiration " at the strength and 
stretch of the human und.erstanding." 

Mr. President, I am unwilling to pass from this subject 
without saying what it is but just to say, that the bar of 



504 

this impei'ial State has furnished its quota, aye, more than 
its quota, to the army of great lawyers and advocates, 
who, by their learning, eloquence and labors, have aided 
the courts of the Union, as well as those of the States, 
in placing our constitutional system upon foundations, 
which, it is hoped, are to endure for ages. Not to speak 
of the living, and not to name all the dead who have done 
honor to the legal profession in this State, I may mention 
Alexander Hamilton, " formed for all parts, in all alike he 
shined, variously great ; " William H. Seward, John C. 
Spencer, Thomas Addis Emmet, John Wells, George 
Wood, Joshua A. Spencer, Benjamin F. Butler, Daniel 
Lord, John Duer, James T. Brady, Ogden Hoffman, 
Charles O'Conor and Roscoe Conkling. Gentlemen of 
the bar of New York, you have in these and other great 
names upon the roll of lawyers and advocates given 
to the country by your State, an inheritance beyond all 
price. 

But, sir, while the Supreme Court of the United States 
is indebted to the Bar of the country for its invaluable 
aid in the administration of justice, it is still more in- 
debted to the highest courts of the several States, and 
to the Circuit and District Courts of the Union. Many 
distinguished members of those courts — ^judges whose 
learning and integrity is everywhere recognized — have 
honored this occasion by their presence. But it is a most 
felicitous circumstance that we have with us the full 
bench of the New York Court of Appeals, of whose 
Bar we are guests upon this occasion. Who can ade- 
quately estimate, who can overstate, the influence for 
good upon American jurisprudence which has been 
exerted by the learned judgments delivered by those 
who have graced the bench of this proud State ? Kent, 
Livingston, Thompson, Spencer, Jones, Nelson, Oakley, 
Savage, Walworth, Marcy, Brouson, Denio and Selden^ 
not to mention oThers, will be remembered as long as 



505 

the scieuce of law hus votaries. If what they wrote 
were obliterated altogether from our judicial history, a 
void would be left iu Americau jurisprudeuce that could 
not be filled. Indeed, the history of American law could 
not well be written without referring to the judgments 
and writings of those eminent jurists. 

And here it is appropriate to say that the duty of ex- 
pounding the Constitution of the United States has not 
devolved alone upon the courts of the Union. From the 
organization of our government to the present time, that 
duty has been shared by the courts of the States. Con- 
gress has taken care to provide that the original juris- 
diction of the courts of the Union of suits at law and 
in equity arising under the Constitution and laws of the 
United States, or under treaties with foreign countries, 
shall be concurrent with that of the courts of the several 
States. This feature of our judicial. system has had much 
to do with creating and perpetuating the feeling that 
the government of the United States is not a foreign 
government, but a government of the people of all the 
States, ordained by them to accomplish objects pertaining 
to the whole country, which could not be efficiently 
achieved by any government except one deriving its 
authority from all the people. 

As we stand to-night in this commercial metropolis, 
where the government created by the Constitution was 
organized, and where the supreme judicial tribunal of the 
Union held its first session, it is pleasant to remember that 
all along its pathway that court has had the cordial 
co-operation and support of the highest court of this the 
most powerful of all the States. The Supreme Court of 
the United States, and the highest court of New York, 
have not always reached the same conclusions upon ques- 
tions of general law, nor have they always agreed as to 
the interpretation of the Constitution of the United States. 
But, despite these differences, expressed with due regard 



506 

to the dignity and authority of each tribunal, they have 
stood together in maintaining these vital principles enun- 
ciated by the Supreme Court of the United States : 

That while the preservation of the States, with author- 
ity to deal with matters not committed to national con- 
trol, is fundamental in the American constitutional sys- 
tem, the Union cannot exist without a government for the 
whole ; 

That the Constitution of the United States was made 
for the whole people of the Union, and is equally binding 
upon all the courts and all the citizens ; 

That the general government, though limited as to its 
objects, is yet supreme with respect to those objects, is 
the government of all, its powers are delegated by all, it 
represents all, and acts for all ; and. 

That America has chosen to be, in many respects and 
to many purposes, a nation, and for all these purposes 
her government is complete, to all these objects it is com- 
petent. 

Mr. President, a few words more. The members of the 
Supreme Court of the United States will return to their 
post of duty, with grateful thanks for the opportunity given 
them to participate in these Centennial exercises. It has 
been good for us to be here. You have given us, gentle- 
men, renewed reason to think that the court of which we 
are members is regarded with affection and confidence 
by the Bar of the country, and that as long as it shall be 
equal to the tremendous responsibilities imposed upon it, 
that affection and confidence will not be withdrawn. 

We have met here to celebrate the organization of that 
court, in this city, one hundred years ago-^a tribunal 
fitly declared to be the living voice of the Constitu- 
tion.' Within that })eriod the progress of the nation in 
all that involves the material prosperity and the moral 
elevation of the people, has exceeded the most sanguine 
expectations of those who laid the foundations of our 



507 

government. But its progress in the knowledge of the 
principles upon which that government rests, and must 
continue to rest, if it is to accomplish the beneficent 
ends for which it was created, is not less marvellous. It 
was once thought by statesmen whose patriotism is not to 
be doubted that the power committed to the courts of the 
Union, especially to the Supreme Court of the United 
States", would ultimately destroy the indei)endence, within 
their respective spheres, of the co-ordinate departments 
of the national government, and even endanger the exist- 
ence and authority of the State governments. But the 
experience of a century, full of startling political and 
social changes, has shown not only that those apprehen- 
sions were groundless, but that the Father of our Country 
was right when he declared, in a letter to the first Chief 
Justice of the United States, that the judicial department 
was the keystone of our political fabric. Time has 
grandly vindicated that declaration. All now admit that 
the fathers did not err when they made provision, in the 
fundamental law, for "one Supreme Court," with author- 
ity to determine, for the whole country, the true meaning 
and scope of that law. The American people, after the 
lapse of a century, have a firm conviction that the elimi- 
nation of that court from our constitutional system would 
be the destruction of the government itself, upon which 
depends the success of the experiment of free institutions 
resting upon the consent of the governed. That those 
institutions, which have answered " the true ends of gov- 
ernment beyond all precedent in human history," may be 
preserved in their integrity ; that our country may, under 
all circumstances, be an object of supreme affection by 
those enjoying the blessings of our republican govern- 
ment; and that the court whose organization you have 
assembled to commemorate may, in its membership as 
well as in its judgments, always meet the just expectations 
of the people, is the earnest wish of those to whom you 
have, on this occasion, done so much honor. 



MEMORIAL 



SENATORS FROM CALIFORNIA AND OREGON, SENATOR 

STEWART FROM NEVADA, AND SENATOR SHOUP 

FROM IDAHO, 

♦ AND FKOM THE 

JUDGES AND MEMBERS OF THE BAR OF CALIFORNIA AND 
THE FEDERAL JUDGES IN THAT STATE, 

REQUESTING 

MR. JUSTICE FIELD 

NOT TO CHANGE HIS CIRCUIT 



The Ninth, embracing the States of California, Nevada, Oregon, 
Washington, Idaho, and Montana, 



Second Circuit, containing the States of New York, Connecticut 
and Vermont. 



MEMORIAL. 



During the year 1893 tlie late Mr. Justice Blatchford 
(lied and Mr. Justice White, of Louisiana, was appointed 
his successor.in February, 1894. The question then arose 
as to which Justice shoukl be assigned to the circuit com- 
posed of New York, Connecticut, and Vermont. The 
assignment was tendered by the court to Mr. Justice Field. 
He was also earnestly requested by certain members of 
the New York bar to accept the assignment. 

Mr. Joseph H. Choate, one of the most distinguished 
members of the profession in that State, and for a long 
time President of its Bar Association, earnestly urged its 
acceptance, and wrote to him as follows : 

" My Dear Judge Field : 

" I have no hesitation in saying that I think that you should 
accept the New York circuit. New York being now deprived 
of any Justice of its own, ought not, nevertheless, to be left 
out in the cold entirely, and is entitled to have assigned to its 
service the Justice who would command the most respect and 
confidence ; and your record in the court for the last thirty 
years naturally indicates you as the man. This bar and com- 
munity would welcome you most warmly and would, I am 
sure, be delighted at your selection. And the very moderate 
amount of judicial service which is exacted now within the 
circuit from the Justice assigned would be more important 
and more effective here than in any other circuit. And if you 
would take up your residence in New York we should feel that 
you were all our own. 

" I do not think that this change would sever or even weaken 
the ties and associations that bind you to the people of the 
Pacific States, to whom you have rendered a life-long service. 



512 

They will, I a(p sure, appreciate the consideration that at your 
age you may well be relieved of any further obligation to make 
a double journey each year or two across the continent, when 
you can render greater and more responsible service here with 
greater comfort and ease to yourself. 

" I hope, therefore, that you will promptly say yes, and crown 
your great judicial record by serving as the Justice of the Sec- 
ond Circuit. 

" Most truly yours, 

" Joseph H. Choate. 
" Hon. Stephen J. Field. 

There were many things which would have rendered 
its acceptance agreeable to him. He had studied in New 
York for the bar when a young man, and in early life had 
left that State for California, and, after being there for 
some years, had been elected to its Supreme bench, and 
afterwards had become its Chief Justice. Subsequently, 
and while its Chief Justice, he was appointed by President 
Lincoln a Justice of the Supreme Court of the United 
States, and after sitting thirty-one years on that bench 
was requested by his associates to return to his old home 
and accept this assignment of the circuit embracing New 
York. 

Whilst he had the matter under consideration, the Sen- 
ators from California and Oregon, Senator Stewart from 
Nevada, and Senator Shoup from Idaho, addressed to 
him a letter requesting that he would continue in his cir- 
cuit on the Pacific Coast. The request was a great sur- 
prise, but was gratifying to him. It would have been 
signed also by Senator Jones had he been present, but 
at the time he was absent from Washington. The follow- 
ing is a copy of the communication : 

United States Senate, 
Washington, D. C, 3Iarch 19, 1894. 
Mr. Justice Stephen J. Field, 

Supreme Court of the United States, Washington, D. C. 

Dear Sir : A rumor has reached us that an effort will be 
made, in the new assignment of Judges to the different cir- 



513 

cuits, occasioned by the death of Judge Bhitchford and the 
appoiutmeut of Judge White of Louisiiiua, to induce you to 
change your circuit and leave the Pacific Coast, to be located 
in New York. We should deeply regret any such change. 
Your name is so intimately connected with the history of the 
Pacific Coast that the people of that section regard you as 
belonging to them, and would keenly regret your change of 
residence. 

Your services in the California Legislature of 1851 were 
invaluable. The Civil Practice Act, which you prepared and 
caused to be adopted, was the foundation of judicial procedure 
in California, and its principles were extended to the surround- 
ing States and Territories. A provision which was incorpo- 
rated in that act became the basis for the system of mining law 
which grew up in the Pacific States and Territories, and was 
finally sanctioned by Congress and declared valid and salutary 
by our highest courts. Through a series of wise judicial decis- 
ions by the State and Federal courts, the principles of that 
provision have formed a comprehensive system of law, gov- 
erning title to mineral lands thoughout the mining- region. 
You provided that in actions respecting mining claims the 
rules and regulations established and enforced by the miners 
themselves at the particular bar or diggings might be offered 
in evidence and, when not in conflict with the laws of the 
State or of the United States, should govern the decision of 
the action. The principle of local self-government which you 
recognized has been followed by the people and all legislative 
bodies and courts up to the present time, and the beneficial 
results of the wisdom of that principle to the great mining- 
industry of the West cannot be overestimated. 

Immediately after your arrival in California, in 1849, you 
became a prominent figure as one of the foremost lawyers at the 
bar in the new State. Your practice in great cases involving 
titles to lauds, mines, and all other kinds of property and inter- 
ests soon made your name a household word throughout the 
Pacific States and Territories. A large part of the arable 
lauds of the State were claimed under Spanish and Mexican 
grants. The laws, customs, and usages of Spain and Mexico, 
upon which these claims to titles depended, were not familiar 



514: 

to the people of the older States, who soon became a great 
majority of the iuhabitauts of the recently acquired territory. 
The settlement of these titles in the farming regions and in 
the towns, involved as they were in difficulty and uncertainty, 
was a labor of great magnitude. 

In 1857 you were elected a Justice of the Supreme Court of 
the State of California at a time when there were great con- 
fusion and excitement throughout the State on account of the 
unsettled condition of titles of all descriptions. During the 
six years that you occupied the bench as one of the Justices 
of the Supreme Court of California you brought order out of 
chaos and laid the foundation for the settlement of the vexed 
questions which retarded the progress and paralyzed the pros- 
perity of the State. 

During the thirty-one years that yoii have occupied a seat 
upon the bench of the Supreme Court of the United States 
you have continued the great work which you had so success- 
fully commenced while a Justice of the Supreme Court of 
California. The people of California, and particularly those 
of San Francisco, are indebted to you more than to any other 
person or officer — and it would not be too much to say all 
others — for the settlement of titles and security of property 
which they now enjoy. The great learning and wisdom which 
you have displayed concerning the settlement of claims based 
upon Mexican grants have won well-merited encomiums. 
Whenever any vexed question arises on the Pacific Coast 
affecting property the people are accustomed to look to you 
for a solution and final settlement. 

The people of the Pacific States and Territories are justly 
proud of the great services you have rendered to the whole 
country by your learning, ability, and judicial wisdom in ex- 
pounding the Constitution and laws of the United States, and 
they appreciate the compliment to which a desire of the bar 
of New York for your assignment to that circuit implies. 
Your contributions to the jurisprudence of the United States 
during your long, useful, and conspicuous career as a Justice 
of the highest court in the land make your name and fame the 
common property of all the people of the United States, and 
entitle you to the love, honor, and respect of every section of 



515 

our country. But the love and respect of the people of the 
Pacific Coast, where your greatest ti'iumphs have been and 
where your judicial labors have beeu most beneficial, although 
mingled with regret at your departure, would remain with you 
wherever you might go. 

Under these circumstances, we, in common with those whom 
we represent, feel that after the great work which you have 
done for them and for the whole coast, and when your labors 
in the Ninth Circuit are less exacting- and imperative than for- 
merly, it would be fitting for you to remain with them and 
continue to make your home with your friends who have been 
so largely benefited by your services, and who so highly ai:)pre- 
ciate your visits Avhcn you are called to the circuit over which 
you have presided ever since it was created. We are confi- 
dent that we represent the wishes of the people of the Pacific 
Coast when we earnestly request that you remain a citizen of 
California the rest of your days, and continue to make your 
home among a people who fully appreciate your great services, 
and whose friendship and respect your high character and at- 
tainments so justly merit. 

Yours, very sincerely, 

William M. Stewart. 

Stephen M. White. 

George C Perkins. 

J. N. DOLPH. 

George L. Shoup. 
John H. Mitchell. 

Soon afterwards a memorial was addressed to him by 
the Justices of the United States courts in California and 
Oregon and the Justices of the Supreme Court of Cali- 
fornia and members of the bar of that State, expressing 
in very earnest terms a wish that he would continue in 
his old circuit and not change to that embracing New 
York. The following is a copy of the memorial : 

San Francisco, Cal., March '^Ist, 1894. 
Hon. Stephen J. Field, 

Justice of the U. S. Supreme Court, Washington, D. C. 
Sir : We learn from the newspapers that the presidency of 
the chief circuit of the country has beeu tendered to you by 



516 

your associates. It is without doubt eminently fitting that 
your great services should receive recognition; and coming 
from your associates upon the high tribunal which you have 
so long adorned, the tribute is a graceful one, and must on all 
accounts be pleasing. 

But we beg to express our hope that you will not break the 
remaining link which connects you with the State of your 
adoption and the scene of your early labors and successes, as 
it seems to us there are good reasons why your name should 
continue to be linked with California. She claims you by rea- 
son of the services you have rendered to her. What is good in 
her law is largely your work. It is matter of history that in 
the early days of the State the elements of the law were diverg- 
ent and difficult to deal with. The country had been a pastoral 
one. Its lands were possessed by people of a different race, 
who were accustomed to a different law, brovight up with dif- 
ferent ideas, and attached to different traditions. The torrent 
of American settlers imposed the common law upon the feebler 
people, to whose habits it was foreign, and who regarded it 
with distrust and dislike. 

And the new industry which had attracted the new popula- 
tion, having assumed gigantic proj)ortions, called for the ap- 
plication of new principles. In this condition of affairs it 
would have been greatly to be regretted if ignorance or nar- 
rowness of mind had had the direction of affairs. It was the 
good fortune of the State that you were called to the head of 
the judiciary. 

Your mind moved upon the face of the troubled waters, and 
out of chaos there came order. A wise and far-seeing insight 
laid broad and deep the foundation of our jurisprudence. 
These things link your name with the judicial history of the 
State. The bar know them and appreciate their importance. 
Since then you have been called to a higher sphere, and have 
taken part in the work of the highest judicial tribunal of the 
nation, and have acquitted yourself in a manner of which Cal- 
ifornia may well be proud. 

Pardon us for saying that we do not think that such asso- 
ciations should be broken. Nor do your old friends like to 
feel that you are going to take a step which will separate you 



517 



from them completely. It may be that the new circuit is 
more important, of greater dignity, and in many ways more 
pleasant. But you cannot find a heartier appreciation of what 
you are and what you have done than you will meet in your 
old home. 

J. McKenna, U. S. Circuit Judge. 

William B. Gilbert, U. S. Circuit Judge. 

Thomas P. Hawley, U. S. District Judge. 

Wm. W. Moerow, U. S. District Jridge. 

Erskine M. Koss, U. S. District Judge. 

Justices of the Svpreme Court of California. 
W. H. Beatty. W. F. Fitzgerald. 



T. B. McFarland. 
J. J. DeHaven. 

Members of the Bar of the 

W. H. L. Barnes. 
Morris M. Estee. 
T. C. Coogan. 
W. H. Chiekeriug. 
Horace G. Piatt. 
Edward J. Pringie. 
Chas. Page. 
Hall McAllister. 
Charles P. Eells. 
M. F. Michael. 
Harold Wheeler. 
Warren Gregory. 
M. L. Gerstle. 
H. L. Gear. 
John Garber. 
WilHam Rix. 
Edward J. McCutchen. 
R. H. Lloyd. 
W. C. Van Fleet. 
E. Burke Holladay. 
J. H. Deering. 
Elliott McAllister. 



Ralph C. Harrison. 
C. H. Garoutte. 

State of California. 

Geo. H. Maxwell. 
Edward R. Taylor. 
Aylett R. Cotton. 
W. S. Goodfellow. 
Garrett W. McEnerney, 
R. M. F. Soto. 
George R. B. Hayes. 
Brewton A. Hayne. 
W. A. Metson. 
J. C. Campbell. 
Robert Y. Hayne. 

E. S. Pillsbury. 
Richard C. Harrison. 
A. F. Morrison. 

F. S. Strattou. 
L. M. Hoefler. 
Eugene R. Garber. 
J. E. Foulds. 

A. G. Booth. 
Norman H. Hurd. 
A. J. Gunnison. 
W. J. Bartnett. 



518 



Robt. Harrison. 
J. W. Dorsey. 
W. E. F. Deal. 
Edmund Taceszky. 
Richard Bayne. 
R. E. Houghton. 
A. H. Loughborough. 
Alexander D. Keyes. 
F. R. King. 
William H. Jordan. 
Carter P. Pomeroy. 
John N. Pomeroy. 
R. B. Carpenter. 
M. C. Blake. 
Joseph D. Redding. 
J. M. Allen. 
Thos. B. Bishop. 
Russell J. Wilson. 
Nathan H. Frank. 
William Barber. 
Geo. L. Gear. 
W. S. Wood. 
A. C. Freeman. 
George E. Bates. 
Sidney V. Smith. 
Geo. N. Williams. 
Edward C. Harrison. 
M. B. Kellogg. 
Chas. N. Fox. 
J. F. Fassett. 
S. W. Holladay. 
Isaac Frohman. 
W. C. Belcher. 
Geo. H. Mastick. 
T. I. Bergen. 
Mountford S. Wilson. 



Wm. M. Pierson. 

Constantine E. A. Foerster. 

Duncan Hayne. 

Geo. A. Knight. 

M. H. Myrick. 

E. B. Young. 

G. F. Gordon. 

J. A. Stephens. 

Jas. Alva Watt. 

E. H. Rixford. 
Donald Y. Campbell. 
H. C. Campbell. 
Philip G. Galpin. 
Warren Olney. 
Joseph J. Dunne. 
Wm. Loewig. 
Gustav Gutsch. 

J. B. Reinstein. 
H. M. Brandenstein. 
M. S. Eisner. 
John A. Wright. 
Wniiam Thomas. 
M. C. Sloss. 
Henry H. Haight. 
Joseph Naphtaly. 
D. Freidenrich. 
A. E. Shaw. 
Crittenden Thornton. 

F. H. Merzbach. 
A. N. Drown. 
Chas. J. Heggerty. 
F. J. Kierce. 
Samuel Knight. 
Jas. C. Martin. 
William F. Herrin. 



We were not present when the above memorial was pre- 
sented at our respective offices or we should have signed it. 
We therefore desire to add our names to it — 



519 

William Matthews. Juo. A. Stanley. 

H. S. Brown. Wm. Singer, Jr. 

James T. Boyd. Wm. H. Fifield. 

James D. Thornton. E. W. McKinstry. 

E. B. Mastick. Frank T. Hoburg. 
C. AV. Cross. 

I think that Judge Field belongs to California. 

Oliver P. Evans. 



The answer of Mr. Justice Field to the Senators from 
California and Oregon, and Senator SteAvart from Nevada 
and Senator Shoup of Idaho was as follows : 

Washington, D. C, June 28, 1894. 
To the Hon. William M. Stewart, Stephen M. White, 

George C. Perkins, J. N. Dolph, George L. Shoup, and 

John H. Mitchell. 

Gtntleinen : When recent changes in the Supreme Court 
rendered necessary a new assignment of Justices to the sev- 
eral circuits, and my wishes were being most courteously 
considered, I was made aware of a desire on the part of some 
influential members of the bar of the New York circuit that I 
would consent to be transferred there. It embraces Con- 
necticut, the State of my birth, and New York, the home of 
my early manhood. I confess that the idea of returning to 
the scenes of my youth, and of the first years of my profes- 
sional career, was invested with a sentimental charm to which 
I could not be insensible. The cordiality of those who urged 
the change, and the desire for ease which naturally causes a 
man of my years (to say nothing of a painful and permanent 
lameness) to prefer duties which are near at hand to those 
which in going to and returning from them involve more than 
6,U00 miles of land travel, were also powerful considerations. 

While the question was still an open one I received your 
very kind letter, in which you were pleased to refer in terms 
of praise to my public services, and especially to that portion 
of them by which the interests of the Pacific Coast have been 



520 

affected, aud to express in words of cordiality, which are most 
grateful to my feelings, the wish that I , shall continue to 
ofl&ciate in the Ninth Circuit and to make California my home. 
You do not confine your expressions to your own personal 
wishes, which then might have seemed partly inspired by 
friendly partiality, but you express the belief that you repre- 
sent the wishes of the people of the Pacific Coast, and that 
they share your own generous estimate of the benefits it has 
been my privilege to secure to them in the due course of the 
discharge of my duties. That the people you represent seem 
to you to be satisfied with my pubhc labors is a testimony 
which I shall highly prize. I have doue a great deal of work, 
the value of which it is not for me to discuss. It has not 
been of a kind to bring popularity, and that no Judge should 
seek. I have done the best I could, and, mindful of the obli- 
gations of the great trust confided to me, I have discharged 
my duty at all times, as I understood it, without fear, favor, 
affection, or hope of reward. 

Your letter confirmed me in the decision I had already 
made. I had found the ties of my Western home too strong 
to be broken, aud that the preference for judicial work there 
far outweighed the inconveniences of travel. I respond 
heartily to all your good words, and assure you that Cali- 
fornia, the State I helped to build, will continue to be my 
home, and that my circuit work will continue to be done on 
the Pacific Coast. With assurances of highest regard, 
I am sincerely yours, 

Stephen J. Field. 



The answer of Mr. Justice Field to the memorial from 
the United States judges in Ccdifornia and the judges of 
that State aud members of the bar was as follows : 



i21 



Washington, D. C, June 28, 1894. 

To the Judges of the Circuit Courts of the United States for 
the Ninth Circuit ; to the District Judges of the United 
States for the Districts vnthin the Ninth Circuit; to the 
Justices of the Supreme Courl, of California ; and to the 
Members of the Bar of the Supreme Court of California. 
Honorable Judges and Gentlemen : Your letter on the 
subject of a possible acceptance bj^ me of a transfer to the New 
York circuit, in the recent reassignment of Justices among- the 
several circuits, was so filled to overflowing with earnest ex- 
pressions of personal kindness, and was so extravagant in its 
estimate of my public services, that I cannot find the words 
which would fittingly express the feelings it inspired. It re- 
called vividly to my mind the early and formative period of the 
history of our beloved State, when it was my great privilege 
to aid as a legislator in the shaping of her laws, at the first 
session after her admission into the Union ; and the years a 
little later on when, as a member of her highest court, I took 
an active part in ajjplying the principles of law to new and 
novel conditions in decision of vital importance to the future 
of her people. I find much satisfaction in the reflection that 
most of the work I then did has stood the test of time, and has 
contributed somewhat to the stability and prosperity of the 
State. 

Since then I have served thirty-one years on the Supreme 
bench of the Nation, during all of which time I have presided 
in the Ninth Circuit. I am gratified at your assurances that 
in this broader field I have not disappointed the expectations 
of my Californian friends. 

The tender to me by the court of an assignment to the New 
York circuit, accompanied as it was by urgent solicitations from 
prominent and representative members of the New York bar 
to accept it, made a strong impression on me, but not strong 
enough to break the cherished ties which bind me to California 
and which have been the growth of forty-five years. It was 
an alluring suggestion that I should be the presiding Justice 
in the circuit composed of my native State of Connecticut, and 
of New York where I studied and first practiced my profes- 



522 

siou, and its proximity to Washington offered me relief from 
tbe long journey between California and Washington, which, 
in going both ways, covers six thousand miles. 

But it required no effort on my part to decline the proffered 
exchange. On the contrary, its acceptance would have re- 
quired a sacrifice of my feelings, which I found I could not 
even seriously contemplate. I shall remain in the Pacific 
Coast circuit. My home will continue to be in California, 
where it will be a pleasure to pass as much of my time as my 
Washington duties and the state of my health will permit. 

In the long array of goodly names appended to the letter 
before me, both of Judges and members of the bar, I miss, 
with a feeling of sadness, those of some of my oldest and 
most cherished friends ; but I find others of a new generation 
who have already shown themselves worthy to succeed them, 
and who will maintain the high reputation the judiciary and 
the bar of our State have always enjoyed. 

Be assured, gentlemen, that while life lasts, among its chief 
pleasures will be the knowledge your letter gives me that I 
have not only your good opinion but your friendship, and the 
certainty of a kindly welcome when circumstances allow us to 
meet. 

I extend to you, one and all, a hearty return for all that 
your letter expresses and implies of kind consideration and 
sincere regard. 

I am, very sincerely, yours, 

Stephen J. Field. 



On the 13th day of October, 1894, the united length of 
Justice Field's service on the bench of the Supreme Court 
of California and the bench of the Supreme Court of the 
United States was thirty-seven years, the service in the 
latter court exceeding thirty-one years. 



A 



THIE STOI^":^' 



ATTEMPTED ASSASSINATION 



JUSTICE FIELD 



FORMER ASSOCIATE ON THE SUPREME BENCH 
OF CALIFORNIA. 



By Hon. GEORGE C. GORHAM. 



Note i!y the Publishers. 

Mr. Gorham is a life-long friend of Justice Field. He was his clerk when the 
latter held the Alcalde's Court in Marysville, in 1850 ; and was Clerk of the U. S. Circuit 
Court of the District of California when it was organized, after Judge Field's appoint- 
ment to the U. S. Supreme Bench. Subsequently, and for several years, he was Secretary 
of the U. S. Senate. Since his retirement from office he has resided in Washington. 
For a part of the time he edited a Republican paper in that city, but of late years he 
has been chiefly engaged in literary works, of which the principal one is the life and 
history of the late Secretary of War, Edwin M. Stanton. 



IN^DEX. 



Attempted Assassination of Justice Field by a Fokmek Asso- 
ciate on the State Supeeme Bench 5 

Chapter I 'S 

The Sluirou-Hill-Terry LitiKatiuii. 

Ohaptek II l-^> 

Proceediugs in the Superior Court of the State. 

Cha pter III 25 

Proceedings in the United States Circuit Court. 

Chapter V -^2 

Decision of the Case in the Federal Court. 

Chapter VI 34 

The Marriage of Terry and Miss Hill. 

Chapter VII 40 

The Bill of Revivor. 

Chapter VIII 46 

The Terrys Imprisoned for Contempt. 

Chapter IX 56 

Terry's Petition to the Circuit Court for a Release — Its 
Refusal — He Appeals to the Supreme Court — Unani- 
mous Decision against Him there. 

Chapter X 65 

President Cleveland refuses to Pardon Terry — False 
Statements of Terry Refuted. 

Chapter XI 74 

Terry's continued Threats to Kill Justice Field — Return 
of the Latter to Oalifornia in 1889. 



4 



PAGK. 

Chaptek XII 77 

Further Proceedings in the State Court. — Judge Sullivan's 
Decision Reversed. 

Chaptek XIII H'.i 

Attempted Assassination of Justice Field. Resulting in 
Terry's own Death at the Hands of a Deputy United 
States Marshal. 

Chapteii XIV lO'i 

Sarah Althea Terry Charges Justice Field and Deputy 
Marshal Neagle with Miirder. 

Chaptek XV KKi 

Justice Field's Arrest and Petition for Release on Habeas 
Corpus. 

Chapter XVI 113 

Judge Terry's Funeral — Refusal of the Supreme Court 
of California to Adjourn on the Occasion. 

Chaptek XVII IKi 

Habeas Corpus Proceedings in Justice Field's Case. 

Chapter XVIII U-i 

Habeas Corpus Proceedings in Neagle's Case. 

Chapter XIX 1(2 

Expressions of Public Opinion. 

Chapter XX 176 

The Appeal to the Supreme Court of the United States, 
and the Second Trial of Sarah Althea's Divorce Case. 

Chapter XXI 190 

Concluding Observations. 



ATTEMPTED ASSASSINATION OF JUSTICE FIELD 
BY A FORMER ASSOCIATE ON THE STATE 
SUPREME BENCH. 



The most thrilling episode in the e.ventfnl life of 
Justice Field was his attem])ted assassination at 
Lathrop, California, on the 14th day of August, 1889, 
by David S. Terry, who had been Chief Justice of the 
State during a portion of Justice Field's service on that 
bench. Terry lost his own life in his desperate 
attempt, by the alertness and courage of David S. 
Neagle, a Deputy United States Marshal, who had been 
deputed by his principal, under an order from the 
Attorney-General of the United States, to protect 
Justice Field from the assassin, who had, for nearly a 
year, boldly and without concealment, proclaimed his 
murderous purpose. The motive of Terry was not in 
any manner connected with their association on the 
State supreme bench, for there had never been any but 
pleasant relations between them. 

Terry resigned from the bench in 1859 to challenge 
Senator Broderick of California to the duel in which 
the latter was killed. He entered the Confederate 
service during the war, and some time after its close he 



returned to California, and entered upon the practice 
of the law. In 1880 he was a candidate for Presi- 
dential elector on the Democratic ticket. His as- 
sociates on that ticket were all elected, while he was 
defeated by the refusal of a number of the old friends 
of Broderick to give him their votes. It is probable 
that his life Avas much embittered by the intense hatred 
he had engendered among the friends of Broderick, 
and the severe censure of a large body of the people 
of the State, not especially attached to the political 
fortunes of the dead Senator. These facts are men- 
tioned as furnishing a possible explanation of Judge 
Terrj-'s marked descent in character and standing from 
the Chief-Justiceship of the State to being the counsel, 
partner, and finally the husband of the discarded com- 
panion of a millionaire in a raid upon the hitter's 
property in the courts. It was during the latter stages 
of this litigation that Judge Terry became enraged 
against Justice Field, because the latter, in the dis- 
charge of his judicial duties, had been compelled to 
order the revival of a decree of the United States Cir- 
cuit Court, in the rendering of which he had taken no 
part. 

A proper understanding of this exciting chapter in 
the life of Justice Field renders necessary a narrative 
of the litigation referred to. It is doubtful if the an- 
nals of the courts or the pages of romance can parallel 



this conspiracy to compel a man of wealth to divide 
his estate with adventurers. Whether it is measured 
bv the value of the prize reached for, bv the character 
of the conspirators, or by the desperate means to which 
they resorted to accomplish their object, it stands in 
the forefront of the list of such operations. 



CHAPTER I. 

THE SHARON-HILL-TEREY LITIGATION. 

The victim, upon a share of whose enormous estate, 
commonly estimated at $15,000,000, these conspirators 
had set their covetous ej^es, was William Sharon, then 
a Senator from the State of Nevada. The woman with 
whom he had terminated his relations, because he be- 
lieved her to be dangerous to his business interests, 
was Sarah Althea Hill. Desirous of turning to the 
best advantage her previous connection with him, she 
sought advice from an old negress of bad repute, and 
the result was a determination to claim that she had a 
secret contract of marriage with him. This negress, 
who during the trial gave unwilling testimony to hav- 
ing furnished the sinews of war in the litigation to the 
extent of at least live thousand dollars, then consulted 
G. W. Tyler, a lawyer noted for his violent manner and 
reckless practices, who explained to her what kind of a 
paper would constitute a legal marriage contract under 
the laws of California. No existing contract was sub- 
mitted to him, but he gave his written opinion as to what 
kind of a contract it would be good to have for the pur- 
pose. The pretended contract was then manufactured 
by Sarah Althea in accordance with this opinion, and 



Tyler subsequently made a written agreement with her 
by which he was to act as her attorney, employ all nec- 
essary assistance, and pay all expenses, and was to have 
one-half of all they could get out of Sharon by their 
joint etibrts as counsel and client. This contract was 
negotiated by an Australian named Neilson, who was 
to have one-half of the lawyer's share. 

On the 7th of September, 1883, a demand was made 
upon Mr. Sharon for money for Miss Hill. He drove 
her emissary, Neilson, out of the hotel where he had 
called upon him, and the latter appeared the next day 
in the police court of San Francisco and made an affi- 
davit charging Mr. Sharon with the crime of adultery. 
A warrant was issued for the latter's arrest, and he was 
held to bail in the sum of $5,000. This charge was 
made for the avowed purpose of establishing the manu- 
factured contract of marriage already referred to, which 
bore date three years before. A copy of this alleged 
contract was furnished to the newspapers together with 
a letter having Sharon's name appended to it, addressed 
at the top to " My Dear Wife," and at the bottom to " Miss 
Hill." This pretended contract and letter Mr. Sharon 
denounced as forgeries. 

On the 3d of October, 1883, Mr. Sharon commenced 
suit in the United States Circuit Court at San Fran- 
cisco against Sarah Althea Hill, setting forth in his 
complaint that he was a citizen of the State of Nevada, 
and she a citizen of California ; 



10 



" that he was, and had been for years, an nnnaarried 
man ; that formerly he was the husband of Maria Ann 
Sharon, who died in May, 1875, and that he had never 
been the husband of any other person ; tliat there were 
two children living, tlie issue of that marriage, and also 
grandchildren, the children of a deceased daughter of 
the marriage ; that he was possessed of a large fortune 
in real and personal property ; was extensively engaged 
in business enterprises and ventures, and had a wide 
business and social connection ; that, as he was in- 
formed, the defendant was an unmarried woman of 
about thirty years of age, for some time a resident of 
San Francisco ; that within two months then past she 
had repeatedly and publicly claimed and represented 
that she was his lawful wife ; that she falsely and fraud- 
ulently pretended that she was duly married to him on the 
twenty-fifth day of August, 1880, at the city and county 
of San Francisco ; that on that day they had jointly 
made a declaration of marriage showing the names, 
ages, and residences of the parties, jointly doing the 
acts required by the Civil Code of California to consti- 
tute a marriage between them, and that thereby they 
became and were husband and wife according to the 
law of that State. 

" The complainant further alleged that these several 
claims, representations, and pretensions were wholly 
and maliciously false, and were made by her for the 
purpose of injuring him in his property, business, and 
social relations ; for the purpose of obtaining credit by 
the use of his name with merchants and others, and 
thereby compelling him to maintain her ; and for the 
purpose of harassing him, and in case of his death, his 
heirs and next of kin and legatees, into payment of large 
sums of money to quiet her false and fraudulent claims 
and pretensions. He also set forth what he was in- 
formed was a copy of the declaration of marriage, and 
alleged that if she had any such instrument, it was ' false, 



11 



forged, and coimteifeited ; ' that lie never, on the day 
of its date, or at any other time, made or execnted any 
such document or dechiration, and never knew or heard 
of the same until within a month previous to that time, 
and that the same was null and void as against him, 
and ouglit, in equity and good conscience, to be so de- 
clared, and ordered to be delivered up, to be annulled 
and cancelled." 

The complaint concluded with a prayer that it be ad- 
judged and decreed that the said Sarah Althea Hill 
was not and never had been his wife ; that he did not 
make the said joint declaration of marriage with her, 
or any marriage between them ; that said contract or 
joint declaration of marriage be decreed and adjudged 
false, fraudulent, forged, and counterfeited, and ordered 
to be delivered up and cancelled and annulled, and that 
she be enjoined from setting up any claims or preten- 
sions of marriage thereby. Sharon was a citizen of 
Nevada, while Miss Hill was a citizen of California.* 



* Note.— A coitrt of equity having jurisdiction to lay its hands upon 
and control forged and fraudulent instruments, it matters not with 
what pretensions and claims their validity may be asserted by their 
possessor ; whether they establish a marriage relation with another, 
or render him an heir to an estate, or confer a title to designated 
pieces of property, or create a pecuniary obligation. It is enough 
that, unless set aside or their use restrained, they may impose bur- 
dens upon the complaining party, or create claims upon his property 
by which its possession and enjoyment may be destroyed or impaired. 
(Sharon vs. Terry, 13 Sawyer's Rep., 406.) The Civil Code of Cali- 
fornia also declares that " a written instrument in respect to which 
there is a reasonable apprehension that, if left outstanding, it may 
cause serious iujury to a person against whom it is void or voidable, 
may, upon his application, be so adjudged, and ordered to be deliv- 
ered up or cancelled " (Sec. 3412). 



12 



Before the time expired in which Miss Hill was re- 
quired to answer the complaint of Mr. Sharon in the 
United States Circuit Court, but not until after the 
federal jurisdiction had attached in that court, she 
brought suit against him, November 1st, in a state 
Superior Court, in the city and county of San Fran- 
cisco, to establish their alleged marriage and then ob- 
tain a decree, and a division of the property stated to 
have been acquired since such marriage. In her com- 
plaint she alleged that on the 25th day of August, 
1880, they became, by mutual agreement, husband and 
wife, and thereafter commenced living together as hus- 
band and wife ; that on that day they had jointly made 
a declaration of marriage in writing, signed by each, 
substantially in form as required by the Civil Code of 
California, and until the month of November, 1881, 
had lived together as husband and wife ; that since 
then the defendant had been guilty of sundry viola- 
tions of the marriage contract. The complaint also 
alleged that when the parties intermarried the defend- 
ant did not have in money or property more than 
live millions of dollars, with an income not exceeding- 
thirty thousand dollars a month, but that since their 
intermarriage they had by their prudent management 
of mines, fortunate speculations, manipulations of the 
stock market, and other business enterprises, accumu- 
lated in money and property more than ten millions of 



18 



dollars, and that now he had in his possession money 
and property of the value at least of fifteen millions of 
dollars, from which he received an income of over one 
hundred thousand dollars a month. The complaint 
concluded with a prayer that the alleged marriage with 
the defendant might be declared legal and valid, and 
that she might be divorced from him, and that an ac- 
count be taken of the common property, and that the 
same be equally divided between them. 

The campaign was thus fully inaugurated, which for 
more than six years disgraced the State with its vio- 
lence and uncleanness, and finally ended in bloodshed. 
The leading combatants were equally resolute and de- 
termined. Mr. Sharon, who was a man of remarkable 
will and energ}^ would have expended his entire for- 
tune in litigation before he would have paid tribute to 
those who thus attempted to plunder him. Sarah 
Altliea Hill was respectably connected, but had drifted 
away from her relations, and pursued, without re- 
straint, her disreputable course. She affected a reck- 
less and daredevil character, carrying a pistol, and 
exhibiting it on occasions in cow-boy fashion, to con- 
vey the impression that those who antagonized her 
had a dangerous character with whom to deal. She 
was ignorant, illiterate, and superstitious. The forged 
document which she thought to make a ])assport to 
the enjoyment of a share of Sharon's millions was a 



14 



clumsy piece of work. It was dated August 25, 1880, 
and contained a clause pledging secrecy for two years 
thereafter. But she never made it public until Sep- 
tember, 1883, although she had, nearly two years 
before that, been turned out of her hotel by Sharon's 
orders. At this treatment she only whimpered and 
wrote begging letters to him, not once claiming, even 
in these private letters to him, to be his wife. She 
could then have published the alleged contract without 
any violation of its terms, and claimed any rights it 
conferred, and it is obvious to any sane man that she 
would have done so had any such document then been 
in existence. 

Although Sharon's case against Sarah Althea Hill 
was commenced in the federal court before the com- 
mencement of Miss Hill's case against Sharon in the 
state court, the latter case was first brought to trial, on 
the lOth of March, 1884. 



CHAPTEE II. 

rROCEEDINGS IN THE SUPERIOH COURT OF THE STATE. 

Mr. Sharon defended in the state court, and prose- 
cuted in the federal court with equal energy. In the 
former he made an affidavit that the pretended mar- 
riage contrjict was a forgery and applied to the court 
for the right to inspect it, and to have photographic 
copies of it made. Sarah Althea resisted the judge's 
order to produce the document in question, until he 
informed her that, if she did not obey, the paper would 
not be admitted as evidence on the trial of the action. 

On the second day of the trial in the state court 
Miss Hill reinforced her cause by the employment of 
Judge David S. Terry as associate counsel. He 
brought to the case a large experience in the use of 
deadly weapons, and gave the proceedings something 
of the character of the ancient " wager of battle." 
Numerous auxiliaries and supernumeraries in the 
shape of lesser lawyers, fighters, and suborned wit- 
nesses were employed in the proceedings as from time 
to time occasion required. The woman testified in her 
own behalf that upon a visit to Mr. Sharon's office he 
had offered to pay her $1,000 per month if she would 
become his mistress ; that she declined his offer in a 



16 



business-like manner, without anger, and entered upon 
a conversation about getting married ; she swore at a 
subsequent interview she drafted a marriage contract 
at Sharon's dictation. This document, to which she 
testified as having been thus drawn up, is .as follows : 

" In the city and county of San Francisco, State of 
CaUfornia, on the 25th day of August, A. D., 1880, I, 
Sarah Althea Hill, of the city and county of San Fran- 
cisco, State of California, aged twenty-seven years, do 
here, in the presence of almighty God, take Senator 
William Sharon, of the State of Nevada, to be my law- 
ful and wedded husband, and do here acknowledge and 
declare myself to be the wife of Senator William Sharon, 
of the State of Nevada. 

" SARAH ALTHEA HILL. 

" August 25, 1880, San Francisco, Cal. 



" I agree not to make known the contents of this 
paper or its existence for two years unless Mr. Sharon, 
himself, sees fit to make it known. 

" SAEAH ALTHEA HILL. 



" In the city and county of San Francisco, State of 
California, on the 25th day of August, A. D. 1880, I, 
Senator William Sharon, of the State of Nevada, aged 
sixty years, do here, in the presence of Almighty God, 
take Sarah Althea Hill, of the city and county of San 
Francisco, California, to be my lawful and wedded wife, 
and do here acknowledge myself to be the husband of 
Sarah Althea Hill. 

" WILLIAM SHARON, 

" Nevada. 

" AucxUST 25, 1880." 

In his testimony Mr. Sharon contradicted every ma- 



17 



terial statement made by Sarah Altliea Hill. He de- 
uied every circumstance connected with the alleged 
drawing up of the marriage contract. 

He testitied that on the 7tli day of November, 1881, 
he terminated his relations with and dismissed her, 
and made a full settlement with her by the payment of 
$3,000 in cash, and notes amounting to $4,500. For 
these she gave him a receipt in full. He charged her 
with subsequently stealing that receipt at one of two 
or three visits made by her after her discharge. 

It is unnecessary to review the voluminous testimony 
introduced by the parties in support of their respective 
contentious. The alleged contract was clearly proven 
to be a forgery. A number of witnesses testified to 
conversations had with Miss Hill long after the date 
of the pretended marriage contract, in which she made 
statements entirely inconsistent with the existence of 
such a document. She employed fortune-tellers to 
give her charms with which she could compel Mr. 
Sharon to marry her, and this, too, when she pretended 
to have in her possession the evidence that she was 
already his wife. Not an appearance of probability 
attended the claim of this bold adventuress. Every 
statement she made concerning the marriage contract, 
and every step she took in her endeavor to enforce it, 
betrayed its false origin. 

The trial of the case in the state court continued 



18 



from Mareli lOtli until Ma}^ 28th, when the summer re- 
cess intervened. It was resumed July 15th, and occu- 
pied the court until September 17tli, on which day the 
argument of counsel Avas concluded and the case sub- 
mitted. No decision was rendered until more than 
three months afterwards, namely, December 24th. 
Nearly two months were then allowed to pass before the 
decree was entered, February 19, 1885. The case 
was tried before Judge Sullivan without a jury, by 
consent of the parties. He decided for the plaintiff, 
holding the marriage contract to be genuine, and to 
constitute a valid marriage. It was manifest that he 
made his decision solely upon the evidence given by 
Sarah Altliea herself, whom he nevertheless branded in 
his opinion as a perjurer, suborner of perjury, and 
forger. Lest this should seem an exaggeration his own 
words are here quoted. She stated that she was 
introduced by Sharon to certain parties as his wife. Of 
her statements to this effect the Judge said : 

" Plaintiff's testimony as to these occasions is directly 
contradicted, and in my judgment her testimony as to 
these matters is wilfully false." 

Concerning $7,500 paid her by Sharon, which she 
alleged she had placed in his hands in the early part of 
her acquaintance with him, the Judge said : 

" This claim, in my judgment, is utterly unfounded. 
No such advance was ever made."' 



19 



At another place in his opinion the Ji-i(l<>-e said : 

" Plaintiff claims that defendant wrote her notes at 
different times after her expulsion from the Grand 
Hotel. If snch notes were written, it seems strange that 
tlie}^ have not been preserved and produced in evidence. 
I do not believe she received any such notes." 

With respect to another document which purported 
to have been signed bv Mr. Sharon, and which Sarah 
Althea produced under compulsion, then withdrew it, 
and failed to produce it afterwards, when called for, 
saving she had lost it, Judge Sullivan said : 

" Among the objections suggested to this paper as ap- 
pearing on its face, was one made hj counsel that the 
signature was evidently a forgery. The matters recited 
in the paper are, in my judgment, at variance with the 
facts it purports to recite. Considering the stubborn 
manner in which the production of this paper was at 
first resisted and the mj-sterious manner of its disap- 
pearance, I am inclined to regard it in the light of one 
of the fabrications for the purpose of bolstering up 
plaintiff's case. I can view the paper in no other light 
than as a fabrication." 

In another part of his opinion Judge Sullivan made 
a sort of a general charge of perjury against her in the 
following language : 

" I am of the opinion that to some extent plaintiff' 
has availed herself of the aid of false testimony for the 
purpose of giving her case a better appearance in the 
eyes of the court, but sometimes parties have been 
known to resort to false testimon}', where in their judg- 



20 



ment it would assist them in prosecuting a lawful claim. 
As 1 understand the facts of this case, that was done 
in this instance." 

In another place Judge Sullivan said : 

" I have discussed fully, in plain language, the nu- 
merous false devices resorted to by the plaintiff for the 
purpose of strengthening her case." 

Miss Sarah and her attorneys had now come in sight 
of the promised land of Sharon's ample estate. Eegu- 
lar proceedings, however, under the law, seemed to 
them too slow ; and besides there was the peril of an 
adverse decision of the Supreme Court on appeal. 
They then decided upon a novel course. Section 137 
of the Civil Code of California provides that while an 
action for divorce is pending, the court may, in its 
discretion, require the husband to pay as alimony any 
money necessary to enable the wife to support herself 
and to prosecute or defeat the action. The enterprising 
attorneys, sharing the bold spirit of their client, and 
presuming upon the compliance of a judge who had 
already done so well by them, went into the court on 
the 8th of January, 1885, and modestly demanded for 
Sarah Althea, upon the sole authority of the provision 
of law above quoted, $10,000 per month, as the money 
necessary to enable her to support herself, and 1150,000 
for attorneys' fees to prosecute the action. This was 
to include back pay for thirty-eight months, making a 



21 



Slim of ^380,000, which added to the $150,000, attor- 
nejs' fees, would have made a grand total of $530,000. 
This was an attempt, under the color of a beneficent 
law^, applicable only to actions for divorce, in which 
the marriage was not denied, to extort from a man 
more than one-half million dollars, for the benefit of a 
woman, seeking first to establish a marriage, and then 
to secure a divorce, in a case in which no decree had 
as yet been entered, declaring her to be a wife. It was 
not merely seeking the money necessary to support the 
plaiutilt' and prosecute the case ; it was a request that 
the inferior court should confiscate more than half a 
million dollars, in anticipation of a decision of the 
Supreme Court on appeal. It was as bold an attempt 
at spoliation as the commencement of the suit itself. 
The Supreme Court of the State had decided that the 
order of a Superior Court allowing alimony during the 
pendency of any action for divorce is not appealable, 
but it had not decided that, under the pretence of 
granting alimony, an inferior judge could apportion a 
rich man's estate among champerty lawyers, and their 
adventurous client, by an order from which there could 
be no appeal, made prior to any decree that there had 
ever been a marriage between the parties, when the 
fact of the marriage was the main issue in the case. 
The counsel for Sharon insisted upon his right to have 
a decree entered from which he could appeal, before 



22 



being thus made to stand and deliver, and the court 
entertained the motion. 

Upon this motion, among other affidavits read in 
opposition, was one by Mr. Sharon himself, in which 
he recited the agreement between Miss Hill and her 
principal attorney, George W. Tyler, in which she was 
to pay him for his services, one-half of all she might 
receive in any judgment obtained against Sharon, he, 
Tyler, advancing all the costs of the litigation. The 
original of this agreement had been tiled by Tyler with 
the county clerk immediately after the announcement 
of the opinion in the case as an evidence of his right 
to half of the proceeds of the judgment. It was con- 
clusive evidence that Sarah Althea required no money 
for the payment of counsel fees. 

After the filing of a mass of affidavits, and an exhaust- 
ive argument of the motion. Judge Sullivan rendered his 
decision, February 16, 1885, granting to Sarah Althea 
Hill an allowance of |2,500 per month, to take effect 
as of the date of the motion, January 8, 1885, and 
further sums of $2,500 each to be paid on the 8th day 
of April, and of each succeeding month until further 
order of the court. 

This the Judge thought reasonable allowance " in 
view of the plaintiff's present circumstances and diffi- 
culties." For counsel fees he allowed the sum of 
$60,000, and at the request of the victors, made in ad- 
vance, he divided the spoils among them as follows : 



23 



To Tyler and Tyler $25,000 

To David S. Terry 10,000 

To Moon and Flournoy 10,000 

To W. H. Levy 10,000 

To Clement, Osmond and Clement. . . 5,000 

By what rule $2,500 was awarded as a proper 
monthly allowance to the woman whose services to 
Mr. Sharon had commanded but §500 per month it is 
difficult to conjecture. It was benevolence itself to give 
$60,000 to a troop of lawyers enlisted under the com- 
mand of Tyler, who had agreed to conduct the pro- 
ceedings wholly at his own cost, for one-half of what 
could be made by the buccaneering enterprise. It 
! seemed to be the purpose of these attorneys to see 
] how much of Mr. Sharon's money they could, with 
Judge Sullivan's assistance, lay their hands upon be- 
fore the entry of the judgment in the case. From the 
judgment an appeal could be taken. By anticipating 
its entry they thought that they had obtained an order 
from which no appeal would lie. 

It was not until three days after this remarkable 
order was made that the decree was entered by Judge 
Sullivan declaring plaintiff and defendant to be hus- 
band and wife ; that he had deserted her, and that she 
was entitled to a decree of divorce, with one-half of the 
common propert}^ accumulated by the parties since the 
date of what he decided to be a valid marriage contract. 



24 



Sharon appealed from the final judgment, and also 
from the order for alimony. Notwithstanding this ap- 
peal, and the giving of a bond on appeal in the sum 
of $300,000 to secure the payment of all alimony and 
counsel fees, Judge Sullivan granted an order directing 
Mr. Sharon to show cause why he should not be pun- 
ished for contempt in failing to pay alimony and coun- 
sel fees, as directed by the order. 

The Supreme Court, upon application, granted an 
ordei" temporarily staying proceedings in the case. 
This stay of proceedings was subsequently made per- 
manent, during the pendency of the appeal. 

Mr. Sharon died November 15, 1885. That very 
day had been set for a hearing of Sharon's motion 
for a new trial. The argument was actually com- 
menced on that day and continued until the next, at 
which time the motion was ordered off the calendar 
because meantime Mr. Sharon had deceased. 



CHAPTER III. 

rROfEEDINGS IN THE UNITED STATES CIRCUIT COURT. 

While these proceedings were being had in tlie state 
courts the case of Sharon vs. Hill in the federal 
court was making slow progress. Miss HilFs attor- 
neys seemed to think that her salvation depended 
upon reaching a decision in her case before the deter- 
mination of Sharon's suit in the United States Circuit 
Court. They were yet to learn, as they afterwards 
did, that after a United States court takes jurisdiction 
in a case, it cannot be ousted of that jurisdiction by 
the decision of a state court, in a proceeding subse- 
quently commenced in the latter. Seldom has " the 
law's delay " been exemplified more thoroughly than it 
was by the obstacles which her attorneys were able to 
interpose at every step of the proceedings in the fed- 
eral court. 

Sharon commenced his suit in the United States 
Circuit Court October 3, 1883, twenty-eight days 
before his enemy commenced hers in the State Su- 
perior Court. By dilator}- pleas her counsel succeeded 
in delaying her answer to Sharon's suit until after the 
decision in her favor in the state court. She did not 
enter an appearance in the federal court until the very 



26 



last day allowed by the rule. A month later she filed 
a demurrer. Her counsel contrived to delay the argu- 
ment of this demurrer for seven weeks after it was 
tiled. It was finally argued and submitted on the 21st 
of January, 1884. On the 3d of March it was over- 
ruled and the defendant was ordered to answer in ten 
days, to wit, March 13th. Then the time for answering 
was extended to April 24th. When that day arrived 
her counsel, instead of filing an answer, filed a plea in 
abatement, denying the non-residence of Mr. Sharon 
in the State of California, on which depended his right 
to sue in the federal court. To this Mr. Sharon's 
counsel filed a replication on the 5th of May. It then 
devolved upon Miss Hill's counsel to produce evidence 
of the fact alleged in the plea, but, after a delay of five 
months and ten days, no evidence whatever was 
offered, and the court ordered the plea to be argued on 
the following day. It was overruled, and thirty days 
were given to file an answer to Sharon's suit. The case 
in the state court had then been tried, argued, and 
submitted thirty days before, but Miss Hill's counsel 
were not yet ready to file their answer within the thirty 
days given them, and the court extended the time for 
answer until December 30th. Six days before that day 
arrived Judge Sullivan rendered his decision. At last, 
on the 30th of December, 1884, fourteen montlis after 
the filing of Sharon's complaint, Sarah Althea's answer 



was filed in the federal court, in which, among other 
things, she set up the proceedings and decree of the 
state court, adjudging the alleged marriage contract to 
be genuine and legal, and the parties to be husband 
and wife, and three days later Sharon filed his replica- 
tion. There was at no time any delay or want of dili- 
gence on the part of the plaintiff in prosecuting this 
suit to final. judgment. On the contrary, as is plainly 
shown in the record above stated, the delays were all 
on the part of the defendant. The taking of the testi- 
mon}^ in the United States Circuit Court commenced 
on the r2th of February, 1885, and closed on the 12th 
of August following. 

The struggle in the state court was going on during 
all the time of the taking of the testimony in the 
federal court, and intensified the excitement attendant 
thereon. Miss Hill was in constant attendance before 
the examiner who took the testimony, often interrupt- 
ing the proceedings with her turbulent and violent con- 
duct and language, and threatening the lives of Mr, 
Sharon's counsel. She constantly carried a pistol, and 
on occasions exhibited it during the examination of 
witnesses, and, pointing it at first one and then another, 
expressed her intention of killing them at some stage 
of the proceedings. She was constantly in contempt 
of the court, and a terror to those around her. Her 
conduct on one occasion, in August, 1885, became so 



28 



violent that the takiup; of the testimony conld not pro- 
ceed, and Justice Field, the presiding judge of the cir- 
cuit, made an order that she should be disarmed, and 
that a bailiff of the court should sit constantly at her 
side to restrain her from any murderous outbreak, such 
as she was constantly threatening. Her principal 
attorney, Tyler, was also most violent and disorderly. 
Judge Terry, while less explosive, was always ready to 
excuse and defend his client. (See Report of Pro- 
ceedings in Sharon vs. Hill, 11 Sawyer's Circuit Court 
Reps., 122.) 

Upon the request of counsel for the complainant, the 
examiner in one case reported to the court the language 
and the conduct of Miss Hill. Among other things, he 
reported her as saying : 

" When T see this testimony [from which certain scan- 
dalous remarks of hers were omitted] I feel like taking 
that man Stewart* out and cowhiding him. I will shoot 
him yet ; that very man sitting there. To think that 
he would put up a woman to come here and delib- 
erately lie about me like that. I will shoot him. They 
know when I say I will do it that I will do it. I shall 
shoot him as sure as you live ; that man that is sitting 
right there. And I shall have that woman Mrs. Smith 
arrested for this, and make her prove it." 

And again : 

" I can hit a four-bit piece nine times out of ten." 

The examiner said that pending the examination of 

* Senator Stewart, who was one of the counsel against her in the suit. 



29 



one of the witnesses, on the o(!eiision mentioned, the 
respondent drew a pistol from her satchel, and held it 
in her right hand ; the hand resting- for a moment upon 
the table, with the weapon pointed in the direction of 
Judge Evans. He also stated that on previous occa- 
sions she had brought to the examiner's room during 
examinations a pistol, and had sat for some length of 
time holding it in her hand, to the knowledge of all 
persons present at the time. After the reading of the 
examiner's report in open court, Justice Field said : 

" In the case of William Sharon versus Sarah Altliea 
Hill, the Examiner in Chancery appointed by the court to 
take the testimon}^ has reported to the court that very 
disorderly proceedings took place before him on the 3d 
instant ; that at that day, in his room, when counsel of 
the parties and the defendant were present, and during 
the examination of a witness by the name of Piper, the 
defendant became very much excited, and threatened 
to take the life of one of the counsel, and that subse- 
quently she drew a pistol and declared her intention to 
carrj' her threat into effect. It appears also from the 
report of the examiner that on repeated occasions the 
defendant has attended before him, during the ex- 
amination of witnesses, armed with a pistol. Such con- 
duct is an offense against the laws of the United States 
punishable by tine and imprisonment. It interferes 
with the due order of proceedings in the administration 
of justice, and is well calculated to bring them into con- 
tempt. I, myself, have not heretofore sat in this case 
and do not expect to participate in its decision ; I intend 
in a few days to leave for the East, but I have been 
consulted by ray associate, and have been requested to 
take part in this side proceeding, for it is of the utmost 



30 



importauee for the due administration of justice that such 
misbehavior as the examiner reports should be stopped, 
and measures be taken which will prevent its recur- 
rence. My associate will comment on the laws of Con- 
gress which make the offense a misdemeanor, punishable 
by line and imprisonment. 

" The marshal of the court will be directed to disarm 
the defendant whenever she goes before tiie examiner 
or into court in any future proceeding, and to appoint 
an officer to keep strict surveillance over her, in order 
that she may not carry out her threatened purpose. 
This order will be entered. The Justice then said that 
it is to be observed that this block, embracing this 
building — the court-house — is under the exclusive juris- 
diction of tlie United States. Every offense committed 
within it is an offense against the United States, and the 
State has no jurisdiction whatever. This fact seems to 
have been forgotten by the parties." 

The following is the order then entered as directed 
by Justice Field : 

" Whereas it appears from the report to this court 
of the Examiner in Chancery in this case appointed to 
take the depositions of witnesses, that on the 3d day 
of August, instant, at his office, counsel of the parties 
appeared, namely, William M. Stewart, Esquire, and 
Oliver P. Evans, Esquire, for the complainant, and W. 
B. Tyler, Esquire, for the defendant, and the defendant 
in person, and that during the examination before said 
examiner of a witness named Piper, the defendant be- 
came excited and threatened the life of the counsel of 
the complainant present, and exhibited a pistol with a 
declared intention to carrj such threat into effect, 
thereby obstructing the order of the proceedings, and 
endeavoring to bring the same into contempt ; and 



31 



" Wliereas it further appears tliat said defendant 
habitually attends before said examiner carrying a pis- 
tol, 

" It is ordered, That the marshal of this court take 
such measures as may be necessary to disarm the said 
defendant, and keep her disarmed, and under strict sur- 
veillance, while she is attending the examination of wit- 
nesses before said examiner, and whenever attending 
in court, and that a deputy be detailed for that purpose." 



CHAPTER V. 

DECISION OF THE CASE IN THE FEDERAL COURT. 

The taking of the testimony being completed, the 
cause was set for a hearing on September 9th. After 
an argument of thirteen days the cause was submitted 
on the 29th of September, 1885. On the 26th of 
December, 1885, the court rendered its decision, that 
the alleged declaration of marriage and the letters 
purporting to have been addressed " My Dear Wife " 
were false and forged, and that the contemporaneous 
conduct of the parties, and particularly of the defend- 
ant, was altogether incompatible with the claim of 
marriage or the existence of any such declaration or 
letters. 

A decree was ordered accordingly, and the court 
made the following further order : 

" As the case was argued and submitted during the 
lifetime of the complainant, who has since deceased, the 
decree will be entered nunc pro tunc, as of September 
29, 1885, the date of its submission and a day prior to 
the decease of the complainant." 

The opinion of the court was delivered by Judge 
Deady, of the United States District Court of Oregon, 
who sat in the case with Judge Sawyer, the circuit 
judge. 



83 

Of the old negress under whose direction the fraud- 
ulent marriage contract had been manufactured, and 
under whose advice and direction the suit in the 
state court had been brought, the Judge said : 

" Mary E. Pleasant, better known as Mammie Pleas- 
ant, is a conspicuous and important figure in this affair ; 
without her it would probabl^y never have been brought 
before the public. She appears to be a shrewd old 
negress of some means. 

" In my judgment this case and the forgeries and 
perjuries committed in its support had their origin 
largely in the brain of this scheming, trafficking, crafty 
old woman." 

He found that the declaration of marriage was 
forged by the defendant by writing the declaration 
over a simulated signature, and that her claim to be 
the wife of the plaintiff was wholly false, and had been 
put forth by her and her co-conspirators for no other 
purpose than to despoil the plaintiff of his property. 
Judge Sawj^er also filed an opinion in the case, in 
which he declared that the weight of the evidence sat- 
isfactorily established the forgery and the fraudulent 
character of the instrument in question. 



CHAPTER VI. 

THE MAEKIAGE OF TERRY AND MISS HILL. 

Sarah Althea now received a powerful recruit, who 
enhsted for the war. This was one of her lawyers, 
David S. Terr}^ whom she married on the 7th day of 
January, 1886, twelve days after the decision of the 
Circuit Court against her, and which he had heard 
announced, but before a decree had been entered in 
conformity with the decision. Terry seemed willing to 
take the chances that the decree of the Superior Court 
would not be reversed in the Supreme Court of the 
State. The decision of the federal court he affected to 
utterly disregard. It was estimated that not less than 
$5,000,000 would be Sarah Althea's share of Sharon's 
estate, in the event of success in her suit. She would 
be a rich widow if it could be established that she had 
ever been a wife. She had quarreled with Tyler, her 
principal attorney, long before, and accused him of 
failing in his professional duty. If she could escape 
from the obligations of her contract with him, she 
would not be compelled to divide with him the hoped- 
for $5,000,000. 

Although Judge Terry had been Chief Justice of the 
Supreme Coui't of California, the crimes of perjury and 



:^5 



forgery and suboruatiou of perjury which had been 
londly charged in Judge Sullivan's opinion against the 
woman, in whose favor he gave judgment, seemed to 
him but trifles. Strangely enough, neither he nor 
Sarah Althea ever uttered a word of resentment against 
him on account of these charges. 

The marriage of Terry with this desperate woman in 
the face of an adverse decision of the Circuit Court, 
by which jurisdiction was first exercised upon the sub- 
ject-matter, was notice to all concerned that, by all the 
methods known to him, he Avould endeavor to win her 
cause, which he thus made his own. He took the 
position that any denial of Sarah Althea's pretense to 
have been the wife of Sharon Avas an insult to her, 
which could only be atoned by the blood of the person 
who made it. This was the proclamation of a vendetta 
against all who should attempt to defend the heirs of 
Mr. Sharon in the possession of that half of their 
inheritance which he and Sarah Althea had marked for 
their own. His subsequent course showed that he 
relied upon the power of intimidation to secure suc- 
cess. He was a man of powerful frame, accustomed 
all his life to the use of weapons, and known to be 
alwa}'S armed with a knife. He had the reputation of 
being a fighting man. He had decided that Sarah 
Althea had been the lawful wife of Sharon, and that 
therefore he had married a virtuous widow. He had 



36 



not often been crossed in his purpose or been resisted 
when he had once taken a position. By his marriage 
he virtually served notice on the judges of the Supreme 
Court of the State, before whom the appeal was then 
pending, that he would not tamely submit to be by 
them proclaimed to be the dupe of the discarded 
woman of another. It was well understood that he 
intended to hold them personal]}' responsible to him 
for any decision that would have that effect. These 
intentions were said to have been made known to them. 

His rule in life, as once stated by himself, was to 
compel acquiescence in his will by threats of violence, 
and known readiness to carry his threats into effect. 
This, he said, would in most cases insure the desired 
result. He counted on men's reluctance to engage in 
personal difficulties with him. He believed in the 
persuasiveness of ruffianism. 

Whether he thought his marriage would frighten 
Judges Sawyer and Deady, who had just rendered 
their decision in the United States Circuit Court, and 
cause them either to modify the terms of the decree 
not yet entered, or deter them from its enforcement, is 
a matter of uncertainty. He was of the ultra State's- 
rights school and had great faith in the power of the 
courts of a State when arrayed against those of the 
United States. He had always denied the jurisdiction 
of the latter in tlie case of Sarah Althea, both as to 



37 



the subject-matter aud as to the parties. He refused 
to see any difference between a suit for a divorce and 
;i suit to cancel a forged paper, \slnch, if allowed to 
pa^s as genuine, would entitle its holder to another's 
property. He persisted in denying that Sharon had 
been a citizen of Nevada during his lifetime, and 
ignored the determination of this question by the Cir- 
cuit Court. 

But if Judge Terry had counted on the fears of the 
United States judges of California he had reckoned 
too boldly, for on the 15th of January, 1886, eight 
days after his marriage, the decree of the Circuit 
Court was formally entered. This decree adjudged 
the alleged marriage contract of August 25, 1880, 
false, counterfeited, fabricated, and fraudulent, and 
ordered that it be surrendered to be cancelled and an- 
nulled, and be kept in the custody of the clerk, subject 
to the further order of the court ; and Sarah Althea 
Hill and her representatives were perpetually enjoined 
from alleging the genuineness or the validity of the 
instrument, or making use of it in any way to support 
her claims as wife of the complainant. 

The execution of this decree would, of course, put 
an end to Sarah Althea's claim, the hope of maintain- 
ing which was supposed to have been the motive of 
the marriage. To defeat its execution then became 
the sole object of Terry's life. This he hoped to do 



88 



by autagoiiiziiig- it with a favorable decision of the 
Supreme Court of the State, on the appeals pending 
therein. It has heretofore been stated that tlie cnse 
against Sharon in the Superior Court was removed 
from the calendar on the 14th day of November, 1885, 
because of the defendant's death on the previous day. 
The lltli of February following, upon proper apyjlica- 
tion, the court ordered the substitution of Frederick 
W. Sharon as executor and sole defendant in the siiit 
in the place of William Sharon, deceased. The motion 
for a new trial was argued on the 28th of the following 
Ma}-, and held under advisement until the 4th of the 
following October, when it was denied. From this 
order of denial an ap]3eal was taken by the defendant. 

It must be borne in mind that there were now two 
appeals in this case to the Supreme Court of the State 
from the Superior Court. One taken on the 25th of 
February, 1885, from the judgment of Judge Sullivan, 
and from his order for alimony and fees, and the other 
an appeal taken October 4, 1886, from the order deny- 
ing the new trial in the cause. 

On the 31st of January, 1888, the Supreme Court 
rendered its decision, affirming the judgment of the 
Superior Court in favor of Sarah Althea, but reversing 
the order made by Judge Sullivan granting counsel 
fees, and reducing the allowance for alimony from 
S2,500 per month to $500. Four judges concurred in 



39 



this decision, namely, McKiustry, Searles, Patterson^ 
and Temple. Three judges dissented, to wit, Thorn- 
ton, Sharpstein, and McFarland. 

There then remained pending in the same court the 
appeal from the order granting a new trial. It was 
reasonable that Terry should expect a favorable decis- 
ion on this appeal, as soon as it could be reached. 
This accomplished, he and Sarah Althea thought to 
enter upon the enjoyment of the great prize for which 
they had contended with such desperate energy. 
Terry iiad always regarded the decree of the Circuit 
Court as a mere harmless expression of opinion, which 
there would be no attempt to enforce, and which the 
state courts would wholly ignore. Whatever force it 
might finally be given by the Supreme Court of the 
United States appeared to him a question far in the 
future, for he supposed he had taken an appeal from 
the decree. This attempted appeal was found to be 
without effect, because when ordered the suit had 
abated by the death of the plaintiff, and no appeal 
could be taken until the case was revived by order of 
the court. This order was never applied for. The 
two years within which an appeal could have been 
taken expired January 15, 1888. The decree of the 
Circuit Court had therefore become final at that time. 



CHAPTER YII. 



THE BILL OF REVIVOR. 



It was at this stage of the prolonged legal contro- 
versy that Justice Field first sat in the case. The 
executor of the Sharon estate, on the 12th of March, 
1888, tiled a bill of revivor in the United States Circuit 
Court. This was a suit to revive the case of Sharon 
vs. Hill, that its decree might stand in the same condi- 
tion and plight in which it was at the time of its entry, 
which, being )iu7ic pro tunc, was of the same effect as 
if the entry had preceded the death of Mr. Sharon, the 
case having been argued and submitted during his life- 
time. The decree directed the surrender and cancella- 
tion of the forged marriage certificate, and perpetually 
enjoined Sarah Althea Hill, and her representatives, 
from alleging the genuineness or validity of that instru- 
ment, or making any use of the same in evidence, or 
otherwise to support any rights claimed under it. 

The necessity for this suit was the fact that the 
forged paper had not been surrendered for cancella- 
tion, as ordered by the decree, and the plaintiff feared 
that the defendant would claim and seek to enforce 
l)roperty rights as wife of the plaintiff, by authority of 
the alleged written declaration of marriage, under the 



41 



decree of auotlier^ourt, esscutially I'ouuded thereupon, 
contrary to the perpetual injunction ordered by the 
Circuit Court. To this suit, David S. Terry, as hus- 
band of the defendant, was made a party. It merely 
asked the Circuit Court to place its own decree in a 
position to be executed, and thereby prevent the 
spoliation of the Sharon estate, under the authority of 
the decree of Judge Sullivan in the suit in the state 
court subsequently commenced. A demurrer was filed 
by the defendant. It was argued in July before Justice 
Field, Judge Sawyer, and District Judge Sabin. It 
was overruled on the 3d of September, when the court 
ordered that the original suit of Sharon against Hill, 
and the final decree therein, stand revived in the name 
of Frederick W. Sharon as executor, and that the said 
suit and the proceedings therein be in the same plight 
and condition they were in at the death of William 
Sharon, so as to give the executor, complainant as 
aforesaid, the full benefit, rights, and protection of the 
decree, and full power to enforce the same against the 
defendants, and each of them, at all times and in all 
places, and in all particulars. The opinion in the case 
was delivered by Justice Field. During its delivery 
he was interrupted by Mrs. Terry with violent and 
abusive language, and an attempt by her to take a 
pistol from a satchel which she held in her hand. Her 
removal from the court-room by order of Justice Field ; 



42 



her husband's assault upon the marshal with a deadly 
weapon for executing the order, and the imprisonment 
of both the Terrys for contempt of court, will be more 
particularly narrated hereafter. 

The commencement of the proceedings for the revival 
of the suit was well calculated to alarm the Terrys. 
They saw that the decree in the Circuit Court was to 
be relied upon for something more than its mere moral 
effect. Their feeling towards Judges Sawyer and 
Deady was one of most intense hatred. Judge Deady 
was at his home in Oregon, beyond the reach of phys- 
ical violence at their hands, but Judge Sawyer was in 
San' Francisco attending to his oiticial duties. Upon 
him they took an occasion to vent their wrath. 

It was on the 14th of August, 1888, after the com- 
mencement of the revivor proceedings, but before the 
decision. Judge Sawyer was returning in the railwa}^ 
train to San Francisco from Los Angeles, where he 
had been to hold court. Judge Terry and his wife 
took the same train at Fresno. Judge Sawyer occu- 
pied a seat near the center of the sleeping-car, and 
Judge and Mrs. Terry took the last section of the car, 
behind him, and on the same side. A few minutes 
after leaving Fresno, Mrs. Terry walked down the aisle 
to a point just beyond Judge Sawyer, and turning 
around with an ugly glare at him, hissed out, in a 
spiteful and contemptuous tone: " Are you here?" to 



48 



Avliicli the Judge quietly replied : " Yes, Madam," and 
bowed. She then resumed her seat. A few minutes 
after, Judge Terry walked down the aisle about the 
same distance, looked over into the end section at the 
front of the car, and hnding it vacant, went back, got a 
small hand-bag, and returned and seated himself in 
the front section, with his back to the engine and fac- 
ing Judge Sawyer. Mrs. Terr}- did not (at the moment) 
accompany him. A few minutes later she walked rap- 
idly down the passage, and as she passed Judge Saw- 
yer, seized hold of his hair at the back of his head, 
gave it a spiteful twitch and passed quickly on, before 
he could fully realize what had occurred. After pass- 
ing she turned a vicious glance upon him, which was 
continued for some time after taking her seat b}^ the 
side of her husband. A passenger heard Mrs. Terr}- 
say to her husband : " I will give him a taste of what 
he will get bye and bye.'' Judge Terry was heard to 
remark : " The best thing to do with him would be to 
take him down the bay and drown him." Upon the 
arrival of Judge Sawyer at San Francisco, he entered 
a street car, and was followed by the Terrys. Mrs. 
Terry took a third seat from him, and seeing him, said : 
" What, are you in this car too '? " When the Terrys 
left the car Mrs. Terry addressed some remark to 
Judge Sawyer in a spiteful tone, and repeated it. He 
said he did not quite catch it, but it was something 



44 



like this : "We will meet aoaiu. This is uot the end of 
it." 

Persons at all familiar with the tricks of those who 
seek human life, and still contrive to keep out of the 
clutches of the law, will see in the scene above recited 
an attempt to provoke an altercation which would have 
been fatal to Judge Sawyer, if he had resented the 
indignity put upon him by Mrs. Terry, by even so 
mnch as a word. This could easily have been made 
the pretext for an altercation between the two men, in 
which the result would not have been doubtful. There 
could have been no proof that Judge Terry knew of 
his wife's intention to insult and assault Judge Sawyer 
as she passed him, nor could it have been proven that 
he knew she had done so. A remonstrance from Saw- 
yer could easily have been construed by Terry, upon 
the statement of his wife, into an original, unprovoked, 
and aggressive affront. It is now, however, certain 
that the killing of Judge Sawyer was not at that time 
intended. It may have been, to use Mrs. Terry's 
words, " to give him a taste of what he would get bye 
and bye," if he should dare to render the decision in 
the revivor case adversely to them. 

This incident has been here introduced and dwelt 
upon for the purpose of showing the tactics resorted 
to by the Terrys during this litigation, and the methods 
by which they sought to control decisions. It is en- 



45 



tiroly probable tl)at tliey bad b(^pos of iiitiniidatiug' tb(; 
federal judges, as many believed some state judges bad 
been, and tbat tbus tbey niigbt " from tbe nettle dan- 
ger, pluck tbe flower safety." 

We liave seen tbat they reckoninl witbout tlieir host. 
We sliall now see to what extent tbeir rage carried 
tbem on tbe day tbat tbe decision \vas rendered reviv- 
ing tbe decree. 



CHAPTER VIII. 

THE TERRYS IMPRISONED FOR CONTEMPT. 

On the day after Judge Sawyer's return from Los 
Angeles he called the marshal to his chambers, and 
notified him of Mrs. Terry's violent conduct towards 
him on the train in the presence of her husband, so 
that he might take such steps as he thought proper to 
keep order when they came into the court-building, 
and see that there was no disturbance in the court- 
room. On the morning of September 3d, the marshal 
was again summoned to Judge Sawyer's room, where 
Judge Field was also present. They informed him that 
the decision in the revival suit would be rendered that 
clay, and they desired him to be present, with a suffi- 
cient number of bailiffs to keep order in court. They 
told him that judging from the action of the Terrys on 
the train, and the threats they were making so publicly, 
and which were being constantly published in the 
newspapers, it was not impossible that they might 
create a disturbance in the court-room. 

When the court opened that day, it found Terry and 
his wife already seated within the bar, and immediately 
in front of the judges. As it afterward appeared, they 
were both on a war-footing, he beino armed with a 



47 



concealed bowie-knife, and slie with a 41-calibve re- 
volver, which she carried in a small hand-bag, five of 
its chambers being loaded. The judges took their 
seats on the bench, and very shortly afterward Justice 
Field, who presided, began reading the opinion of the 
court in which both of his associates concurred. A 
printed pamphlet copy of this opinion contains 61 
pages, of whicli 18 are taken up with a statement of 
the case. The opinion commences at page 19 and 
covers the remaining 42 pages of the pamphlet. 

From time to time, as the reading of the opinion 
progressed, Mrs. Terry, who was greatly excited, was 
observed to unclasp and clasp again the fastening of 
her satchel which contained her pistol, as if to be sure 
she could do so at any desired moment. At the lltli 
page of the opinion the following passage occurs : 

" The original decree is not self -executing in all its 
parts ; it may be questioned whether any steps could 
be taken for its enforcement, until it was revived, but 
if this were otherwise, the surrender of the alleged 
marriage contract for cancellation, as ordered, requires 
affirmative action on the part of the defendant. The 
relief granted is not complete until such surrender is 
made. When the decree pronounced the instrument a 
forgery, not only had the plaintiff the right that it 
should thus be put out of the way of being used in the 
future to his embarrassment and the embarrassment of 
his estate, but public justice required that it should be 
formally cancelled, that it might constantly bear on its 
face the evidence of its bad character, whenever or 
wherever presented or appealed to." 



48 



When Mrs. Terry heard the above words concerning 
the surrender of the alleged marriage contract for can- 
cellation, she first endeavored for a few seconds, but 
unsuccessfully, to open the satchel containing her 
pistol. For some reason the catch refused to yield. 
Then, rising to her feet, and placing the satchel before 
her on the table, she addressed the presiding justice, 
saying : 

"Are you going to make me give up my marriage 
contract ? " 

Justice Field said, " Be seated, madam." 

She repeated her question : 

"Are you going to take the responsibility of ordering 
me to deliver up that contract ? " 

She was again ordered to resume her seat. At this 
she commenced raving loudly and violently at the 
justice in coarse terms, using such phrases as these : 

" Mr. Justice Field, how much have you been bought 
for ? Everybody knows that you have been bought ; 
that this is a paid decision." -' 

" How big was the sack? " 

" How much have you been paid for the decision ? " 

"You have been bought by Newland's coin; every- 
body knows you were sent out here by the Newlands to 
make this decision." 

" Every one of you there have been paid for this 
decision." 



49 



At the commeuceiuent of this tirade, and after her 
refusal to desist Avhen twice ordered to do so, the pre- 
siding justice directed the marshal to remove lier from 
the court-room. She said defiantly : 

" I will not be removed from the court-room ; you 
dare not remove me from the court-room." 

Judge Terry made no sign of remonstrance with her, 
had not endeavored to restrain her, but had, on the 
contrary, been seen to nod approvingly to her, as if 
assenting to something she had said to him just before 
she sprang to her feet. The instant, however, the 
court directed her removal from the room, of which she 
had thus taken temporary possession, to the total sus- 
pension of the court proceedings, his soul was " in 
arms and eager for the fray." As the marshal moved 
toward the offending woman, he rose from his seat, 
under great excitement, exclaiming, among other things, 
" No living man shall touch my wife ! " or words of 
that import, and dealt the marshal a violent blow in the 
face," breaking one of his front teeth. He then unbut- 
toned his coat and thrust his hand under his vest, 
where his bowie-knife was kept, apparently for the 
purpose of drawing it, when he was seized by persons 
present, his hands held from drawing his weapon, and 
he himself forced down on his back. The marshal. 



"^ One of the wituesses stated that Terry also, said, " Get a written 
order from the eourt." 



50 



with the assistance of a deputy, then removed Mrs. 
Terry from the court-room, she struggling, screaming, 
kicking, striking, and scratching them as she went, and 
pouring out imprecations upon Judges Field and Saw- 
yer, denouncing them as " corrupt scoundrels," and 
declaring she would kill them both. She was taken 
from the room into the main corridor, thence into the 
marshal's business office, and then into an inner room 
of his office. She did not cease struggling when she 
reached that room, but continued her frantic abuse. 

While Mrs. Terry was being removed from the court- 
room Terry was held down by several strong men. He 
was thus, by force alone, prevented from drawing his 
knife on the marshal. While thus held he gave vent 
to coarse and denunciatory language against the offi- 
cers. When Mrs. Terry was removed from the court- 
room he was allowed to rise. He at once made a swift 
rush for the door leading to the corridor on which was 
the marshal's office. As he was about leaving the 
room or immediately after stepping out of it, he suc- 
ceeded in drawing his knife. As he crossed the thresh- 
old he brandished the knife above his head, saying, "I 
am going to my wife." There was a territied cry from 
the bystanders : " He has got a knife." His arms were 
then seized by a deputy marshal and others present, to 
prevent him from using it, and a desperate striiggle 
ensued. Four persons held on to the arms and body 



51 



of Terry, and one presented a pistol to his head, 
threatening at the same time to shoot him if lie did not 
oivo up the knife. To these threats Terry paid no 
attention, but held on to the knife, actually passing it 
during the struggle from one hand to the other. David 
Neagle then seized the handle of the knife and com- 
menced drawing it through Terry's hand, when Terry 
relinquished it. 

The whole scene was one of the wildest alarm and 
confusion. To use the language of one of the witnesses, 
" Terry's conduct throughout this affair was most 
violent. He acted like a demon, and all the time while 
in the corridor he used loud and violent language, 
which could be plainly heard in the court-room, and, 
in fact, throughout the building," applying to the 
officers vile epithets, and threatening to cut their hearts 
out if they did not let him go to his wife. The knife 
which Terry drew, and which he afterwards designated 
as " a small sheath knife," was, including the handle, 
nine and a quarter inches long, the blade being five 
inches, having a sharp point, and is commonly called a 
bowie-knife. He himself afterwards represented that 
he drew this knife, not " because he wanted to hurt 
anybody, but because he wanted to force his way into 
the marshal's office." 

The presiding justice had read only a small portion 
of the opinion of the court when he was interrupted by 



52 



the boisterous and violent proceedings described. On 
their conclusion, by the arrest of the Terrys, he pro- 
ceeded with the reading of the opinion, which occupied 
nearly a whole hour. The justices, without adjourning 
the court, then retired to the adjoining chambers of the 
presiding justice for deliberation. They there con- 
sidered of the action which should be taken against the 
Terrys for their disorderly and contemptuous conduct. 
After determining what that should be they returned to 
the court-room and announced it. For their conduct 
and resistance to the execution of the order of the court 
both were adjudged guilty of contempt and ordered, as 
a punishment, to be imprisoned in the county jail, 
Terry for six months and his wife for thirty days. 
When Terr}" heard of the order, and the commitment 
was read to him, he said, " Judge Field " (applying to 
him a coarse and vituperative epithet) " thinks when I 
get out, when I get released from jail, that he will be 
in Washington, but I will meet him when he comes 
back next year, and it will not be a very pleasant meet- 
ing for him." 

Mrs. Terry said that she would kill both Judges Field 
and Sawyer, and repeated the threat several times. 
While the prisoners were being taken to jail, Mrs. 
Terry said to her husband, referring to Judge Sawyer : 
" I wooled him good on the train coming from Los 
Angeles. He has never told that." To which he re- 
plied : " He will not tell that ; that was too good." 



53 



She said she could have shot Judge Field and killed 
him from where she stood in the court-room, but that 
she was not ready then to kill the old villain ; she 
wanted him to live longer. While crossing the ferry 
to Oakland she said, " I could have killed Judges Field 
and SaAvyer ; I could shoot either one of them, and 
you would not find a judge or a jury in the State 
would convict me." She repeated this, and Terry 
answered, saying: "No, you could not find a jury that 
would convict any one for killing the old villain," 
referring to Judge Field. 

The jailer at Alameda testified that one day Mrs. 
Terry showed him the sheath of her husband's knife, 
saying : " That is the sheath of that big bowie-knife 
that the Judge drew. Don't you think it is a large 
knife ? " Judge Terry was present, and laughed and 
said : " Yes ; I always carry that," meaning the knife. 

To J. H. O'Brien, a Avell-known citizen, Judge Terry 
said that " after he got out of jail he would horsewhip 
Judge Field. He said he did not think he would ever 
return to California, but this earth was not large 
enough to keep him from finding Judge Field, and 
horsewhi]>ping him," and said, " if he resents it I will 
kill him." 

To a newspaper writer, Thomas T. Williams, he said : 
" Judge Field would not dare to come out to the Pacific 
Coast, and he would have a settlement with him if he 
did come." 



54 



J. M. Shannon, a friend of Terry's for thirty years, 
testified that while the Terrys were in jail he called 
there with Mr. Wi^ginton, formerly a member of Con- 
gress from California ; that during the call Mrs. Terry 
said something to her husband to the effect that they 
could not do anything at all in regard to it. He said : 
" Yes, we can." 8he asked what they could do. He 
said : " I can kill old Sawyer, damn him. I will kill 
old Sawyer, and then the President will haye to ap- 
point some one in his place." In saying this " he 
brought his tist down hard and seemed to be mad." 

Ex-Congressman Wigginton also testified concerning 
this visit to Terry. It occurred soon after the commit- 
ment. He went to arrange about some case in which 
he and Terry were counsel on opposite sides. He told 
Terry of a rumor that there was some old grudge or 
difference between him and Judge Field. Terry said 
there was none he knew of. He said : 

" ' When Judge Field's name was mentioned as Can- 
didate for President of the United States,' — I think 
he said, — ' when I was a delegate to the conyention, it 
being supposed that I had certain influence with a 
certain political element, that also had delegates in the 
conyention, some friend or friends' — I will not be sure 
whether it was friend or friends — ' of Judge Field came 
to me and asked for my influence with these delegates 
to secure the nomination for Judge Field. My answer ' — 
I am now stating the language as near as I can of 
Judge Terrj^'s — ' my answer* was, ' no, I have no in- 
fluence with that element.' I understood it to be the 



55 



workingmen's delegates. I could not control these 
delegates, and if I could wonld not control them for 
Field.' He said : 'That may have caused some alien- 
ation, but I do not know that Field knew that.' " 

Mr. Wigginton said that Mrs. Terry asked her hus- 
band what he could do, and he replied, showing more 
feeling than he had before : " Do ? I can kill old 
Sawyer, and by God, if necessary, I will, and the 
President will then have to appoint some one else in 
his place." 



CHAPTER IX. 

terky's petition 'j^o the circuit court for a release 

its refusal — he appeals to the supreme court — 
unanimous decision against him there — president 
cleveland refuses to pardon him — falsehoods 

REFUTED. 

Ou the 12tli of September Terry petitioned the Cir- 
cuit Court for a revocation of the order of imprisou- 
roent in his case, and in support thereof made the 
following statement under oath : 

" That when petitioner's wife, the said Sarah A. 
Terry, first arose from her seat, and before she uttered 
a word, your petitioner used every effort in his power 
to cause her to resume her seat and remain quiet, and 
he did nothing to encourage her in her acts of indiscre- 
tion ; when this court made the order that petitioner's 
wife be removed from the court-room your petitioner 
arose from his seat witli the intention and purpose of 
himself removing her from the court-room quietly and 
peaceably, and that he had no intention or design of 
obstructing or preventing the execution of said order 
of the court ; that he never struck or offered to strike 
the United States marshal until the said marshal had 
assaulted himself, and had in his presence violently, 
and as he believed unnecessarily, assaulted the peti- 
tioner's wife. 

" Your petitioner most solemnly swears that he neither 
drew nor attempted to draw any deadly weapon of any 
kind whatever in said court-room, and that he did not 



57 



assault or attempt to assault the U. S. marshal with 
an}' deadly weapon in said court-room or elsewhere. 
And in this connection he respectfully represents that 
after he left said court-room he heard loud talking in 
one of the rooms of the U. S. marshal, and among the 
voices proceeding therefrom he recognized that of his 
wife, and he thereupon attempted to force his way into 
said room through the main office of the United States 
marshal ; the door of the room was blocked by such a 
crowd of men that the door could not be closed ; that 
your petitioner then, for the first time, drew from in- 
side his vest a small sheath-knife, at the same time 
saying to those standing in his way in said door, that 
he did not want to hurt any one ; that all he wanted 
was to get into the room where his wife was. The 
ci'owd then parted and your petitioner entered the 
doorway, and there saw a United States deputy mar- 
shal with a revolver in his hand pointed to the ceiling 
of the room. Some one then said : ' Let him in if he 
will give up his knife,' and your petitioner immediately 
released hold of the knife to some one standing by. 

" In none of these transactions did your petitioner 
have the slightest idea of showing any disrespect to 
this honorable court or any of the judges thereof. 

" That he lost his temper, he respectfully submits 
was a natural consequence of himself being assaulted 
when he was making an honest eflbrt to peaceably 
and quietly enforce the order of the court, so as 
avoid a scandalous scene, and of his seeing his wife so 
unnecessarily assaulted in his presence." 

It will be observed that Terry, in his petition, con- 
tradicts the facts recited in the orders for the commit- 
ment of himself and his wife. These orders were made 
by Justice Field. Circuit Judge Sawyer, and District 
Judge Sabin from the district of Nevada, who did not 



58 



depend iipou the testimony of otliers for information 
as to the facts in the case, but were, themselves, eye- 
witnesses and spoke from personal observation and 
absolute knowledge. 

In passing upon Terrj^'s petition, these judges, 
speaking through Justice Field, who delivered the 
opinion of the court, bore testimony to a more partic- 
ular account of the conduct of Terry and his wife than 
had been given in the order for the commitment. As 
the scene has already been described at length, this 
portion of the opinion of the court would be a mere 
repetition, and is therefore omitted. After reciting the 
facts, Justice Field referred to the gravity of Terry's 
offense in the following terms : 

" The misbehavior of the defendant, David S. Terry, 
in the presence of the court, in the court-room, and in 
the corridor, which was near thereto, and in one of 
which (and it matters not which) he drew his bowie- 
knife, and brandished it with threats against the deputy 
of the marshal and others aiding him, is sufficient of 
itself to justify the punishment imposed. But, great as 
this offense was, the forcible resistance offered to the 
marshal in his attempt to execute the order of the 
court, and beating him, was a far greater and more 
serious affair. The resistance and beating was the 
highest possible indignity to the Government. When 
the flag of the country is tired upon and insulted, it is 
not the injury to the bunting, the linen, or silk on 
which the stars and stripes are stamped which startles 
and arouses the country. It is the indignity and insult 
to the emblem of the nation's majesty which stirs every 



59 



heart, and makes every patriot eager to resent tbem. 
80, the forcible resistance to an officer of the United 
States in the execution of the process, orders, and judg- 
ments of their courts is in like manner an indignity and 
insult to the power and authority of the Government 
which can neither be overlooked nor extenuated." 

After reviewing Terry's statement, Justice Field said : 

" We have read this petition with great surprise at 
its omissions and misstatements. As to what occurred 
under our immediate observation, its statements do not 
accord with the facts as we saw them ; as to what 
occurred at the further end of the room and in the cor- 
ridor, its statements are directly opposed to the con- 
curring accounts of the officers of the court and parties 
present, whose position was such as to preclude error 
in their observations. According to the sworn state- 
ment of the marshal, which accords with our own 
observations, so far from having struck or assaulted 
Terry, he had not even laid his hands upon him when 
the violent blow in the face was received. And it is 
clearly beyond controversy that Terry never voluntarily 
surrendered his bowie-knife, and that it was wrenched 
from him only after a violent struggle. 

" We can only account for his misstatement of facts 
as they were seen by several witnesses, by supposing 
that he was in such a rage at the time that he lost com- 
mand of himself, and does not well remember what he 
then did, or what he then said. Some judgment as to 
the weight this statement should receive, independently 
of the incontrovertible facts at variance with it, may be 
formed from his speaking of the deadly bowie-knife he 
drew as ' a small sheath-knife,' and of the shameless 
language and conduct of his wife as ' her acts of indis- 
cretion.' 

" No one can believe that he thrust his hand under 



60 



his vest where his bowie-knife was carried without in- 
tending to draw it. To beheve that he placed his right 
hand there for any other purpose — such as to rest it 
after tlie violent fatigue of the blow in the marshal's 
face or to smooth down his ruffled linen — would be 
childish credulity. 

" But eveu his own statement admits the assaulting 
of the marshal, who was endeavoring to enforce the 
order of the court, and his subsequently drawing a 
knife to force his way into the room where the marshal 
had removed his wife. Yet he offers no apology for 
his conduct ; expresses no regret for what he did, and 
makes no reference to his violent and vituperative lan- 
guage against the judges and officers of the court, while 
under arrest, which is detailed in the affidavits tiled." 

In refusing to grant the petition the court said : 

" There is nothing in his petition which would justify 
any remission of the imprisonment. The law imputes 
an attempt to accomplish the natural result of one's 
acts, and when these acts are of a criminal nature it 
will not accept, against such implication, the denial of 
the transgressor. No one would be safe if the denial 
of a wrongful or criminal act would suffice to release 
the violator of the law from the punishment due his 
offenses." 

On September 17, 1888, after the announcement of 
the opinion of the court by Mr. Justice Field denying 
the petition of D. S. Terry for a revocation of the 
order committing hi in for contempt, Mr. Terry made 
public a correspondence between himself and Judge 
Solomon Heydenfeldt, which explains itself, and is as 
follows : 



61 



"Mv Dear TEituY: 

" The papers which oar friend Stanley sends you will 
explain what we are trying to do. I wish to see Field 
to-morrow and sound his disposition, and if it seems 
advisable I will present our ])etition. But in order to 
he effective, and perhaps successful, I wish to feel as- 
sured and be able to give the assurance that failure to 
agree will not be followed by any attempt on your part 
to break the peace either by action or demonstration. 
I know that you would never compromise me in any 
such manner, but it will give me the power to make an 
emphatic assertion to that effect and that ought to help. 

" Please answer promptly. 

""8. HEYDENFELDT." 

The reply of Judge Terry is as follows : 

" Dear Heydenfeldt : 

" Your letter was handed me last evening. I do not 
expect a favorable result from any application to the 
Circuit Court, and I have very reluctantly consented 
that an application be made to Judge Field, who will 
probably wish to pay me for my refusal to aid his 
presidential aspirations four years ago. I had a con- 
versation with Garber on Saturday last in which I told 
him if I was released I would seek no personal satis- 
faction for what had passed. You may say as emphat- 
ically as you wish that I do not contemplate breaking 
the peace, and that, so far from seeking, I will avoid 
meeting any of the parties concerned. I will not prom- 
ise that I will refrain from denouncing the decision or 
its authors. I believe that the decision was purchased 
and paid for with coin from the Sharon estate, and I 
Avould stay here for ten years before I would say that 
I did not so beheve. If the judges of the Circuit Court 
would do what is right they would revoke the order 
imprisoning my wife. She certainly was in contempt 



62 



of court, but that great provocation was given by going 
outside the record to smirch her character ought to be 
taken into consideration in mitigation of the sentence. 
Field, when a legislator, thought that no court should 
be allowed to punish for contempt by imprisonment for 
a longer period than live days. My Avife has already 
been in prison double that time for words spoken un- 
der very great provocation. No matter what the result, 
I propose to stay here until my wife is dismissed. 
"Yours truly, 

"D. S. TEKRY." 

In the opinion of the court, referred to in the fore- 
going letter as " smirching the character " of Mrs. 
Terry, there was nothing said reflecting upon her, ex- 
cept what was contained in quotations from the opinion 
of Judge Sullivan of the State court in the divorce case 
of Sharon vs. Hill in her favor. These quotations 
commenced at page 58 of the pamphlet copy of Justice 
Field's opinion, when less than three pages remained 
to be read. It was at page 29 of the pamphlet that 
Justice Field was reading when Mrs. Terry interrupted 
him and was removed from the court-room. After her 
removal he resumed the reading of the opinion, and 
only after reading 29 pages, occupying nearly an hour, 
did he reach the quotations in which Judge Sullivan 
expressed his own opinion that Mrs. Terry had com- 
mitted perjury several times in his court. The reading 
of them could not possibh^ have furnished her any 
provocation for her conduct. She had then been re- 



63 



movod h'om tlio coni't-rooiii more than an hour. lie- 
sides, it' they " smirched " her character, why did she 
submit to them com])hicently when tliey were originally 
uttered from the bench by Judge Sullivan in his opin- 
ion rendered in her favor? 

Justice Field, in what he was reading that so in- 
censed Mrs. Terry, was simply stating the efi'ect of a 
decree previously rendered in a case, in the trial of 
which he had taken no part. He was stating the law 
as to the rights established by that decree. The efforts 
then made by Terry, and subsequently by his friends 
aud counsel, to make it appear that his assault upon 
the marshal and defiance of the court were caused by 
his righteous indignation at assaults made by Judge 
Field upon his wife's character were puerile, because 
based on a falsehood. The best proof of this is the 
opinion itself. 

Judge Terry next applied to the Supreme Court of 
the United States for a writ of habeas corpus. In that 
application he declared that on the 12th day of Sep- 
tember, 1888, he addressed to the Circuit Court a 
petition duly verified by his oath, and then stated the 
petition for release above quoted. Yet in a communi- 
cation published iu the S^ni Francisco Exmniuer of 
October 22d he solemnly declared that this very peti- 
tion was not tiled by any one on his behalf. After full 



64 



argument by the Supreme Court the writ was denied, 
November 12, 1888, by an unanimous court, Justice 
Field, of course, not sitting in the case. Justice Har- 
lan delivered the opinion of the Court. 



CHAPTER X. 

PRESIDENT CLEVELAND REFUSES TO PARDON TERRY — FALSE 
STATEMENTS OF TERRY REFUTED. 

Before the petition for habeas corpus was presented 
to the Supreme Court of the United States, Judge 
Terry's friends made a strenuous effort to secure his 
pardon from President Cleveland. The President de- 
clined to interfere. In his efforts in that direction 
Judge Terry made gross misrepresentations as to 
Judge Field's relations with himself, which were fully 
refuted by Judge Heydenfelt, the very witness he had 
invoked. Judge Heydenfelt had been an associate of 
Judge Terry on the State supreme bench. These rep- 
resentations and their refutation are here given as a 
necessary element in this narrative. 

Five days after he had been imprisoned, to wit, Sep- 
tember 8, Terry wrote a letter to his friend Zachariah 
Montgomery at Washington, then Assistant Attorney- 
General for the Interior Department under the Cleve- 
land Administration, in which he asked his aid to ob- 
tain a pardon from the President. Knowing that it 
would be useless to ask this upon the record of his 
conduct as shown by the order for his commitment, he 
resorted to the desperate expedient of endeavoring to 



66 



overcome that record by pnttiug his own oath to a 
false statement of the facts, against the statement of 
the three judges, made on their own knowledge, as 
eye-witnesses, and supported by the afl&davits of court 
oflBcers, lawyers, and spectators. 
To Montgomery he wrote : 

" I have made a plain statement of the facts which 
occurred in the court, and upon that propose to ask 
the intervention of the President, and I request you 
to see the President ; tell him all you know of me, and 
what degree of credit should be given to a statement 
by me upon my own knowledge of the facts. AVhen 
you read the statement I have made you will be satis- 
fied that the statement in the order of the court is 
false." 

He then proceeded to tell his story as he told it in 
his petition to the Circuit Court. His false representa- 
tions as to the assault he made upon the marshal, and as 
to his alleged provocation therefor, were puerile in the 
extreme. He stood alone in his declaration that the 
marshal first assaulted him, while the three judges and 
a dozen witnesses declared the very opposite. His 
denial that he had assaulted the marshal with a deadly 
weapon was contradicted by the judges and others, 
who said that they saw him attempt to draw a knife in 
the court-room, which attempt, followed up as it was 
continually until successful, constituted an assault with 
that weapon. To call his bowie-knife " a small sheath- 



67 



knife," and the outrageous conduct of his wife " acts 
of indiscretion;" to pretend that he lost his temper 
because he was assaulted " while making an honest 
effort to peaceably and quietly enforce the order of the 
court," and finally to pretend that his wife had been 
" unnecessarily assaulted " in his presence, was all not 
only false, but simply absurd and ridiculous. 

He said : " I don't want to stay ija prison six months 
for an offense of which I am not guilty. There is no 
way left except to appeal to the President. The record 
of a court imports absolute veritj^ so I am not allowed 
to show that the record of the Circuit Court is abso- 
lutely false. If you can help me in this matter you 
will confer on me the greatest possible favor." 

He told Montgomery that it had been suggested to 
him that one reason for Field's conduct was his refusal 
to support the latter's aspirations for the Presidency. 
In this connection he made the following statement : 

" In March, 1884, I received a note from my friend 
Judge Heydenfeldt, saying that he wished to see me on 
important business, and asking me to call at his office. 
I did so, and he informed me that he had received a 
letter from Judge Field, who was confident that if he 
could get the vote of California in the Democratic 
National Convention, which would assemble that year, 
he would be nominated for President and would be 
elected as, with the influence of his family and their 
connection, that he would certainly carry New York ; 
that Judge Field further said that a Congressman from 
California and otlier of his friends had said that if I 



68 



would aid hiui, I could give him the California delega- 
tion ; that he understood I wanted official recognition 
as, because of my duel years ago, I was under a cloud ; 
that if I would aid him, I should have anything I de- 
sired." 



It will be observed that he here positively states 
that Judge Heydenfeldt told him he had received a let- 
ter from Judge Field, asking Terry's aid and promising, 
for it, a reward. Judge Heydenfeldt, in a letter dated 
August 21, 1889, to the Sa?i F'/'a/ncisco Examiner, 
branded Terry's assertion as false. The letter to the 
Examiner is as follows : 

" The statement made in to-day's Examiner \\\ refer- 
ence to the alleged letter from Justice Field to me, 
derived, as is stated by Mr. Ashe, from a conversation 
with Judge Terry, is utterly devoid of truth. 

" I had at one time, many years ago, a letter from 
Justice Field, in which he stated that he was going to 
devote his leisure to preparing for circulation among 
his friends his reminiscences, and, referring to those of 
earl}' California times, he requested me to obtain from 
Judge Terry his, Terry's, version of the Terry-Brod- 
erick duel, in order that his account of it might be 
accurate. As soon as I received this letter, I wrote to 
Judge Terry, informing him of Judge Field's wishes, 
and recommending him to comply, as coming, as the 
account would, from friendly hands, it would put him 
correct upon the record, and would be in a form which 
would endure as long as necessary for his reputation on 
that subject. 

"I received no answer from Judge Terry, but meet- 
ing him, some weeks after, on the street in this city, he 



69 



excused himself, saying that ho had been very busy, 
and achling that it was unnecessary for him to furnish 
a version of the duel, as the pubHshed and accepted 
version was correct. 

" The letter to me from -Justice Field above referred 
to is the only letter from Justice Field to me in which 
Judge Terry's name was ever mentioned, and, with the 
exception of the above-mentioned street conversation, 
Judge Field was never the subject of conversation be- 
tween Judge Terry and myself, from the time I left the 
bench, on the 1st of January, 1857, up to the time of 
Terry's death. 

"As to the statement tliat during Terry's trouble with 
the Sharon case, I offered Terry the use of Field's 
letter, it results from what I have above stated — that 
it is a vile falsehood, whoever may be responsible 
for it. 

" I had no such letter, and consequently could have 
made no such offer. 

"San Francisco, August 21, 1889. 

"S. HEYDENFELDT." 

Judge Heydenfeldt subsequently addressed the fol- 
lowing letter to Judge Field : 

" San Francisco, August 31, 1889. 

" My Dear Judge : I received yours of yesterday 
with the extract from the Washington Post of the 22d 
inst., containing a copy of a letter from the late Judge 
Terry to the Hon. Zack Montgomery. 

" The statement in that letter of a conversation be- 
tween Terry and myself in reference to you is untrue. 
The only conversation Terry and I ever had in relation 
to you was, as heretofore stated, in regard to a request 
from you to me to get from Terry his version of the 
Terry-Broderick duel, to be used in your intended 
reminiscences. 



70 



"I do not see how Terry could have made such au 
erroneous statement, unless, possibly, he deemed that 
application as an advance made by you towards ob- 
taining his political friendship, and upon that built up 
a theory, which he moulded into the fancy written by 
him in the Montgomery letter. 

" In all of our correspondence, kept up from time to 
time since your first removal to Washington down to 
the present, no letter of yours contained a request to 
obtain the political support of any one, 

" I remain, dear Judge, very truly yours, 

" S. HEYDENFELDT. 
" Hon. Stephen J. Field, 

" Palace Hotel, San Francisco." 

At the hearing of the Neagle case, Justice Field was 
asked if he had been informed of any statements made 
by Judge Terry of ill feeling existing between them be- 
fore the latter's imprisonment for contempt. He 
replied : 

" Yes, sir. Since that time I have seen a letter pur- 
porting to come from Terry to Zack Montgomery, pub- 
lished in Washington, in which he ascribed my action 
to personal hostility, because he had not supported me 
in some political aspiration. There is not one particle 
of truth in that statement. It is a pure invention. In 
support of his statement he referred to a letter received 
or an interview had with Judge Heydenfeldt. There 
is not the slightest foundation for it, and I cannot 
understand it, except that the man seems to me to have 
been all changed in the last few years, and he did not 
hesitate to assert that the official actions of others were 
governed by improper considerations. I saw charges 
made by him against judges of the State courts ; that 



71 



they liad been corrupt in their decisions ac^ainst him ; 
that they had been bought. Tluit was the common 
assertion made by him when decisions were rendered 
against him/' 

He then referred to the above letters of Judge Hey- 
denfeldt, declaring Terry's assertion to be false. 

It should be borne in mind that Terry's letter to 
Montgomery was written September 8th. It directly 
contradicts what he had said to ex-Congressman Wig- 
ginton on the 5th or 6th of the same month. To that 
gentleman he declared that he knew of no " old grudge 
or little difference " between himself and Judge Field. 
He said he had declined to support the latter for the 
Presidency, and added : "That may have caused some 
alienation, but I do not know that Judge Field knew 
that." 

In his insane rage Terry did not realize how 
absurd it was to expect people to believe that Judge 
Sawyer and Judge Sabin, both Kepublicans, had par- 
ticipated in putting him in jail, to punish him for not 
having supported Justice Field for the Presidency in a 
National Democratic Convention years before. 

Perhaps Terry thought his reference to the fact that 
Judge Field's name had been previously used in Demo- 
cratic Conventions, in connection with the Presidency, 
might have some effect upon President Cleveland's 
mind. 



72 



This letter was not forwarded to Zachariali Mont- 
gomery until a week after it was written. He then 
stated in a postscript that he had dehiyed sending it 
upon the advice of his attorney's pending the applica- 
tion to the Circuit Court for his release. Again he 
charged that the judges had made a false record against 
him, and that evidence would be presented to the 
President to show it. 

Terry and his friends brought all the pressure to 
bear that they could command, but the President 
refused his petition for a pardon, and, as already 
shown, the Supreme Court unanimously decided that 
his imprisonment for contempt had been lawfully 
ordered. He was therefore obliged to serve out his 
time. 

Mrs. Terry served her thirty days in jail, and was 
released on the 3d of October. 

There is a federal statute that provides for the re- 
duction of a term of imprisonment of criminals for 
good behavior. Judge Terry sought to have this 
statute applied in his case, but without success. The 
Circuit Court held that the law relates to state peni- 
tentiaries, and not to jails, and that the system of 
credits could not be applied to prisoners in jail. Be- 
sides this, the cretlits in any case are counted by the 
year, and not by days or months. The law specifies 
that prisoners in state prisons are entitled to so many 



73 



months' time for the first year, and so many for each 
subsequent year. As Terry's sentence ran for six 
months, the court saiJ tlie Liw could not apply. He 
consequently remained in jail until the 3d of March, 

1889. 



CHAPTER XI. 

terky's continued threats to kill justice field 

return of the latter to california in 1889. 

Justice Field left California for AVashington in Sep- 
tember, 1888, a few clays after the denial of Terry's 
petition to the Circuit Court for a release. The 
threats against his life and that of Judge Sawyer so 
boldly made by the Terrys were as well known as the 
newspaper press could make them. In addition to this 
source of information, reports came from many other 
directions, telling of the rage of the Terrys and their 
murderous intentious. From October, 1888, till his 
departure for California, in June following, 1889, his 
mail almost every day contained reports of what they 
were saying, and the warnings and entreaties of his 
friends against his return to that State. These threats 
came to the knowledge of the Attorney- General of the 
United States, who gave directions to the marshal of 
the northern district of California to see to it that Jus- 
tice Field and Judge Sawyer should be protected from 
personal violence at the hands of these parties. 

Justice Field made but one answer to all who ad- 
vised against his going to hold court in California in 
1889, and that was,. "I caunot and will not allow 



threats of persoiiiil violence to deter me from the ref,ni- 
lar performance of my judicial duties at the times and 
places fixed by law. As a judge of the highest court 
of the country, I should be ashamed to look any man 
in the face if I allowed a ruffian, by threats against my 
person, to keep me from holding the regular courts in 
my circuit." 

Terry's murderous intentions became a matter of 
public notoriety, and members of Congress and Sena- 
tors from the Pacific Coast, in interviews with the At- 
torney-General, confirmed the information derived by 
him from other sources of the peril to which the United 
States judges in California Avere subjected. He, in 
consequence, addressed the following letter on the sub- 
ject to Marshal Franks : 

" Department of Justice, 
" Washington, April 27, 1889. 

" John C. Franks, 

" United States Marshal, San Francisco, Cal. 
" Sir : The proceedings which have heretofore been 
had in the case of Mr. and Mrs. Terry in your United 
States Circuit Court have become matter of public no- 
toriety, and I deem it my duty to call your attention to 
the propriety of exercising unusual precaution, in case 
further proceedings shall be had in that case, for the 
protection of His Honor Justice Field, or whoever may 
be called upon to hear and determine the matter. Of 
course,! do not know what may be the feelings or pur- 
pose of Mr. and Mrs. Terry in the premises, but many 
things which have happened indicate that violence on 



76 



their part is not impossible. It is due to the dignity 
and independence of the court and the character of its 
judges that no effort on the part of the, Government 
shall be spared to make them feel entirely safe and free 
from anxiety in the discharge of their high duties. 

" You will understand, of course, that this letter is 
not for the public, but to put you upon your guard. 
It will be proper for you to show it to the District At- 
torney if deemed best. 

" Yours truly, 

"W. H. H. MILLER, 
" Attorney - General r 

A month later the Attorney-General authorized the 
employment of special deputies for the purpose named 
in the foregoing letter. 



CHAPTEIl XII. 

further proceedings in the state court. judge sul- 

livan's decision reversed. 

Mrs. Terry did not wait for the release of her hus- 
band from jail before renewing the battle. /On the 22d 
of January, 1889, she gave notice of a motion in the 
Superior Court for the appointment of a receiver who 
should take charge of th^ Sharon estate, which she 
alleged was being squandered to the injury of her in- 
terest therein acquired under the judgment of Judge 
Sullivan. On the 29th of January an injunction was 
issued by the United States Circuit Court commanding 
her and all others to desist from this proceeding. The 
Terrys seemed to feel confident that this would bring 
on a final trial of strength between the federal and 
state courts, and that the state court would prevail 
in enforcing its judgment and orders. 

The motion for a receiver was submitted after full 
argument, and on the 3d of June following Judge 
Sullivan rendered a decision asserting the jurisdiction 
of his court to entertain the motion for a receiver, and 
declaring the decree of the United States Circuit Court 
inoperative. In his opinion Judge Sullivan reviewed 
the opinion of Justice Field in the revivor suit, taking 



78 



issue therewith. As that decision had been affirmed 
by the Supreme Court of the United States nearly a 
month before, to wit, on the 13th of May, 1889, it was 
rather late for such a discussion. Having thus de- 
cided, however, that the motion for a receiver could be 
made, he set the hearing of the same for July 15, 
1889. 

On the 27th of May, one week before the rendering 
of this decision by Judge Sullivan, the mandate of the 
United States Supreme Court had been filed in the 
Circuit Court at San Francisco, by which the decree 
of that court was afhrmed. Whether a receiver would 
be appointed by Judge Sullivan, in the face of the de- 
cision of the Supreme Court of the United States, 
became now an interesting question. Terry and his 
lawyers affected to hold in contempt the Supreme 
Court decree, and seemed to think no serious attempt 
would be made to enforce it. 

Meantime, both of the Terrys had been indicted in 
the United States Circuit Court for the several offenses 
committed by them in assaulting the marshal in the 
court-room as hereinbefore described. These indict- 
ments were tiled on the 20tli of September. Dilatory 
motions were granted from time to time, and it was 
not until the 4th of June that demurrers to the indict- 
ments were filed. The summer vacation followed 
without any argument of these demurrers. It was 



79 



during tliis vacation that Jvistice Field arrived in Cali- 
fornia, on the 20th of June. The situation then 
existing was as follows : 

The criminal proceedings against the Terrys were at 
a standstill, having been allowed to drag along for nine 
months, with no further progress than the filing of de- 
murrers to the indictments. 

The appeal to the Supreme Court of the State from 
Judge Sullivan's order denying a new trial had been 
argued and submitted on the 4th of May, but no de- 
cision had been rendered. 

Despite the pendency of that appeal, by reason of 
which the judgment of the Supreme Court of the State 
had not yet become final, and despite the mandate of 
the United States Supreme Court affirming the decree 
in the revivor case, Judge Sullivan had, as we have 
already seen, set the loth of July for the hearing of 
the motion of the Terrys for the appointment of a re- 
ceiver to take charge of the Sharon estate. For them 
to proceed with this motion would be a contempt of 
the United States Circuit Court. 

The arrival of Justice Field should have instructed 
Judge Terry that the decree of that court could not be 
defied with impunity, and that the injunction issued in 
it against further proceedings upon the judgment in 
the state court would be enforced with all the power 
authorized by the Constitution and laws of the United 
States for the enforcement of judicial process. 



80 



As the 15th of July approached, the lawyers who 
had been associated with Terry commenced discussing 
among themselves what would be the probable conse- 
quence to them of disobeying an injunction of the 
United States Circuit Court. The attorneys for the 
Sharon estate made known their determination to apply 
to that Court for the enforcement of its writ in their 
behalf. The Terrys' experience in resisting the au- 
thority of that court served as a warning for their 
attorneys. 

On the morning of the 15th of July Judge Terry 
and his wife appeared, as usual, in the Superior Court 
room. Two of their lawyers came in, remained a few 
minutes and retired. Judge Terry himself remained 
silent. His wife arose and addressed the court, saying 
that her lawyers were afraid to appear for her. She 
said they feared if they should make a motion in her 
behalf, for the appointment of a receiver, Judge Field 
would put them in jail ; therefore, she said, she ap- 
peared for herself. She said if she got in jail she 
would rather have her husband outside, and this was 
why she made the motion herself, while he remained a 
spectator. 

The hearing was postponed for several days. Be- 
fore the appointed day therefor, the Supreme Court of 
the State, on the 17th of July, rendered its decision, 
reversing the order of Judge Sullivan refusing a new 



81 



trial, thereby obliterating tlie judgment in favor of 
Sarah Althea, and the previous decision of the appel- 
late court affirming it. ♦ The court held that this 
previous judgment had not become the law of the case 
pending the appeal from the order den^'ing a new 
trial. It held that where two appeals are taken in the 
same case, one from the judgment and the other from 
the order denying a new trial, the whole case must be 
held to be under the control of the Supreme Court 
until the whole is disposed of, and the case remanded 
for further proceedings in the court below. The 
court reversed its previous decision, and declared 
that if the statements made by Sarah Althea and by 
her witnesses had been true, she never had been the wife 
of William Sharon, for the reason that, after the date 
of the alleged contract of marriage, the parties held 
themselves out to the public as single and unmarried 
people, and that even according to the findings of fact 
by Judge Sullivan the parties had not assumed marital 
rights, duties, and obligations. Tlie case was there- 
fore remanded to the Superior Court for a new trial. 

^On the 2d of August the demurrers to the several 
indictments against the Terrys came up to be heard in 
the United States District Court. The argument upon 
them concluded on the 5th. On the 7th the demurrer 
to one of the indictments against Sarah Althea was 
overruled and she entered a plea of not guilty. No 



82 



decision was rendered at that time upon either of the 
five other indictments. 

On the following day, August 8th, Justice Field left 
San Francisco and went to Los Angeles for the pur- 
pose of holding court. 



CHAPTEK XIIT. 

ATTEMPTED ASSASSINATION OF JUSTICE FIELD, RESULTING IN 
terry's OWN DEATH AT THE HANDS OF A DEPUTY 
UNITED STATES MARSHAL. 

In view of wliat was so soon to occur, it is important 
to understand the condition of mind into which Judge 
Terry and his wife had now wrought themselves. 
The}^ had been married about two years and a half. 
In their desperate struggle for a share of a rich man's 
estate they had made themselves the terror of the 
community. Armed at all times and ready for mortal 
combat with whoever opposed their claims, they 
seemed, up to the 17th of July, to have won their way 
in the State courts by intimidation. The decision of 
the United States Circuit Court was rendered before 
they were married. It proclaimed the pretended mar- 
riage agreement a forgery, and ordered it to be deliv- 
ered to the clerk of the court for cancellation. Terry's 
marriage with Sarah Althea, twelve days after this, 
was a declaration of intention to resist its authority. 

The conduct of the pair in the Circuit Court on the 
3d of September must have had some object. They 
may have thought to break up the session of the court 
for that day, and to so intimidate the judges that they 
would not carry out their purpose of rendering the 



84 



decision ; or they may have hoped that, if rendered, it 
would be allowed to slumber without any attempt to 
enforce it ; or even that a rehearing might be granted, 
and a favorable decision forced from the court. It 
takes a brave man on the bench to stand tirmly for his 
convictions in the face of such tactics as were adopted 
by the Terr3^s. The scene was expected also to have 
its effect upon the minds of the judges of the Supreme 
Court of the State, who then were yet to pass finally 
upon Sullivan's judgment on the appeal from the order 
denying a new trial. 

But the Terrys had not looked sufficiently at the 
possible consequence of their actions. The}^ had thus 
far gone unresisted. As District Attorney Carey wrote 
to the Attorney -General : 

'' They were unable to appi-eciate that an officer 
should perform his official duty when that duty in any 
way requires that his efforts be directed against them." 

When, therefore, Justice Field directed the removal 
of Mrs. Terry from the court, and when her doughty 
defendant and champion, confident of being able to 
defeat the order, found himself vanquished in the en- 
counter, disarmed, arrested, and finally imprisoned, his 
rage was boundless. He had found a tribunal which 
cared nothing for his threats, and was able to over- 
come his violence. A court that would put him in the 



85 



Alameda jail for six mouths for resisting its order 
would enforce all its decrees with equal certainty. 

From the time of the Terrys' incarceration in the 
Alameda county jail their threats against Justice Field 
became a matter of such notoriety that the drift of 
discussion was not so much whether they would mur- 
der the Justice, as to when arid under what circum- 
stances they would be likely to do so. 

There is little doubt that Terry made many threats 
for the express purpose of having them reach the 
knowledge of Judge Field at Washington, in the hope 
and belief that they would deter him from going to 
California. Ho probably thought that the Judge would 
prefer to avoid a violent contlict, and that if his ab- 
sence could be assured it might result in allowing the 
decree of the United States Circuit Court to remain a 
dead letter. 

He told many people that Justice Field would not 
dare come oat to the Pacific Coast. He got the idea 
into his mind, or pretended to, that Justice Field had 
put him in jail in order to be able to leave for Wash- 
ington before a meeting could be had with him. Terry 
would of course have preferred Field's absence and a 
successful execution of Sullivan's judgment to his 
presence in the State and the enforcement of the 
federal decree. 

When the announcement was made that Justice 



86 



Field had left Wasbingtou for San Francisco, public 
and private discussions were actively engaged in, as 
to where he would be likely to encounter danger. 
A special deputy was sent by the marshal to meet 
the overland train on which he was travelling, 
at Reno, in Nevada. The methods of Mrs. Terry de- 
fied all calculations. She was as likely to make her 
appearance, with her burly husband as an escort, at 
the State line, as she finally did at the breakfast table 
at Lathrop. f Justice Field reached his quarters in San 
Francisco on the 20th of June. From that day until 
the 14th of August public discussion of what the 
Terrys would do continued. Some of the newspapers 
seemed bent upon provoking a conflict, and inquired 
with devilish mischief when Terry was going to carry 
out his tlireatened purpose. 

The threats of the Terr^^s and the rumors of their 
intended assault upon Justice Field were reported to 
him and he was advised to go armed against such 
assault, which would be aimed against his life. He 
answered : " No, sir ! I will not carry arms, for when 
it is known that the judges of our courts are compelled 
to arm themselves against assaults in consequence of 
their judicial action it will be time to dissolve the 
courts, consider government a failure, and let society 
lapse into barbarism." 

As the time approached for the hearing of the 



87 



motion for a receiver before Judge Sullivan, July 
15tli, grave apprehensions were entertained of serious 
trouble. Great impatience was expressed with the 
Supreme Court of the State for not rendering its de- 
cision upon the appeal from the order denying a new 
trial. It was hoped that the previous decision might 
be reversed, and a conflict between the two jurisdic- 
tions thus avoided. When the decision came, on the 
17th of July, there seemed to be some relaxation of 
the great tension in the public mind. With the 
Supreme Court of the State, as well as the Supreme 
Court of the United States, squarely on the record 
against Mrs. Terry's pretensions to have been the wife 
of William Sharon, it was hoped that the long war had 
ended. 

When Justice Field left San Francisco for Los 
Angeles he had no apprehensions of danger, and 
strenuously objected to being accompanied by the dep- 
uty marshal. Some of his friends were less confident. 
They realized better than he did the bitterness that dwelt 
in the hearts of Terry and his wife, intensified as it was 
by the realization of the dismal fact that their last 
hope had expired with the decision of the Supreme 
Court of the State. The marshal was impressed with 
the danger that woidd attend Justice Field's journey 
to and from the court at Los Angeles. 

He went from San Francisco on the 8th of August. 



88 



After holding court in Los Angeles he took the 
train for San Francisco August 13th, the deputy 
marshal occupying a section in the sleeping car 
directly opposite to his. Judge Terry and his wife left 
San Francisco for their home in Fresno the day fol- 
lowing Justice Field's departure for Los Angeles. 
Fresno is a station on the Southern Pacific between 
Los Angeles and San Francisco. His train left 
Los Angeles for San Francisco at 1.30 Tuesday 
afternoon, August 13th. The deputy marshal got out 
at all the stations at which any stop was made for 
any length of time, to observe who got on board. 
Before retiring he asked the porter of the car to be 
sure and wake him in time for him to get dressed 
before they reached Fresno. At Fresno, where they 
arrived during the night, he got off the train and 
went out on the platform. Among the passengers 
who took the train at that station were Judge Terry 
and wife. He immediately returned to the sleeper and 
informed Justice Field, who had been awakened by the 
stopping of the train, that Terry and his wife had got 
on the train. He replied : " Very well. I hope that 
they will have a good sleep." 

Neagle slept no more that night. The train reached 
Merced, an intervening station between Fresno and 
Lathrop, at 5.30 that morning. Neagle there conferred 
with the conductor, on the platform, and referred to 



89 



tlie threats so often made by the Terrys. He told him 
that Justice Field was on the train, and that he was 
accompanying- him. He re(;[uosted liim to tidegrapli to 
Lathroii, to the constalilo usually in attendance there, 
to be at hand, and that if any trouble occurred he 
would assist in preventing violence. 

Justice Field got u]) before the train reached 
Lathrop, and told the deputy marshal that he was 
going to take his breakfast in the dining-room at that 
place. The following is his statement of what took 
place : 

" He said to me, ' Judge, you can get a good break- 
fast at the buffet on board.' I did not think at the 
time what he was driving at, though I am now satisfied 
that he wanted me to take breakfast on the car and not 
get off. I said I prefer to have my breakfast at this 
station. I think I said I had come down from the 
Yosemite Valley a few days before, and got a good 
breakfast there, and was going there for that purpose. 

" He replied : ' I Avill go with you.' We were among 
the first to get oft" from the train." 

As soon as the train arrived. Justice Field, leaning 
on the arm of Neagie, because of his lameness, pro- 
ceeded to the dining-room, where they took seats for 
breakfast. 

There were in this dining-room fifteen tables, each 
one of which was ten feet long and four feet wide. 



90 



They were arranged in three rows of five each, the 
tables running lengthwise with each otl^er, with spaces 
between them of four feet. The aisles between the 
two rows were about seven feet apart, tlie rows running 
north and south. 

Justice Field and Neagle were seated on the west 
side of the middle table in the middle row, the Justice 
being nearer the lower corner of the table, and Neagle 
at his left. Yery soon after — Justice Field says " a 
few minutes," while Neagle says " it may be a minute 
or so " — Judge Terry and his wife entered the dining- 
room from the east. They walked up the aisle, be- 
tween the east and middle rows of tables, so that Justice 
Field and Neagle were faced towards them. Judge 
Terry preceded his wife. Justice Field saw them and 
called Neagle's attention to them. He had already 
seen them. 

As soon as Mrs. Terry had reached a point nearly 
in front of Justice Field, she turned suddenly around, 
and scowling viciouslj^ went in great haste out of the 
door at which she had come in. This was for the pur- 
pose, as it afterwards appeared, of getting her satchel 
with the pistol in it, which she had left in the car. 
Judge Terr}^ apparently paid no attention to this move- 
ment, but proceeded to the next table above and seated 
himself at the upper end of it, facing the table at which 
Justice Field was seated. Thus there were between 



91 



the two men as they sat at the tables a distance equal 
to two table-lengths and one space of four feet, making 
about twenty-four feet. Terrv had been seated but a 
very short time — Justice Field tlK)Ught it a moment or 
two, Neagle thought it three or four minutes — when he 
arose and moved down towai'ds the door, this time 
walking through the aisle he/iind Justice Field, instead 
of the one in front of him as before. Justice Field 
supposed, when he arose, that he was going out to meet 
his wife, as she had not returned, and went on with his 
breakfast; but when Terry had reached a point behind 
him, and a little to the right, within two or three feet 
of him, he halted. Justice Field was not aware of this, 
nor did he know that Terry had stopped, until he was 
struck by him a violent blow in the face from behind, 
followed instantaneously by another blow at the back 
of his head. Neagle had seen Terry stop and turn. 
Between this and Terry's assault there was a pause of 
four or five seconds. Instantaneously upon Terry's 
dealing a blow, Neagle leaped from his chair and inter- 
posed his diminutive form between Justice Field and 
the enraged and powerful man, who now sought to 
execute his long-announced and murderous purpose. 
Terry gave Justice Field no warning of his presence 
except a blow from behind with his right hand. 

As Neagle rose, he shouted : " Stop, stop, I am an 
officer." Judge Terry had drawn back his right arm 



92 



for a third blow at Justice Field, and with clinched fist 
was about to strike, when his attention was thus 
arrested by Neagle, and looking at him he evidently 
recognized in him the man who had drawn the knife 
from his hand in the corridor before the marshal's 
office on the third of September of the preceding year, 
while he was attempting to cut his way into the mar- 
shal's office. Neagle put his right hand up as he 
ordered Terry to stop, when Terry carried his right 
hand at once to his breast, evidently to seize the knife 
which he had told the Alameda county jailer he 
" always carried." Says Neagle : 

" This hand came right to his breast. It went a 
good deal quicker than I can explain it. He continued 
looking at me in a desperate manner and his hand got 
there." 

The expression of Terry's face at that time was de- 
scribed by Neagle in these words: 

" The most desperate expression that I ever saw on 
a man's face, and I have seen a good many in my time. 
It meant life or death to me or him." 

Having thus for a moment diverted the blow aimed 
at Justice Field and engaged Terry himself, Neagle did 
not wait to be butchered with the latter's ready knife, 
which he was now attempting to draw, but raised his 
six-shooter with his left hand (he is left-handed) and 



93 



holding the barrel of it with his right hand, to prevent 
the pistol from being knocked out of his hands, he shot 
twice ; the first shot into Terry's body and tlio second 
at his head. Terry immediately commenced sinking 
very slowly. Knowing by experience that men mor- 
tally wounded have been often known to kill those with 
whom they were engaged in such an encounter, Neagle 
fired the second shot to defend himself and Justice 
Field against such a possibility. 

The following is an extract from Justice Field's tes- 
timony, commencing at the point where Judge Terry 
rose from his seat at the breakfast table : 

"I supposed, at the time, he was going out to meet 
his wife, as she had not returned, so I went on with my 
breakfast. It seems, however, that he came around 
back of me. I did not see him, and he struck me a 
violent blow in the face, followed instantaneoush" by 
another blow. Coming so immediately together, the 
two blows seemed like one assault. I heard ' Stop, 
stop,' cried by Neagle. Of course I was for a moment 
dazed by the blows. I turned mj head around and 
saw that great form of Terry's with his arm raised and 
fist clinched to strike me. I felt that a terrific blow 
was coming, and his arm was descending in a curved 
way as though to strike the side of my temple, when I 
heard Neagle cry out : ■ Stop, stop, 1 am an officer.' 
Instantly two shots followed. I can only explain the 
second shot from the fact that he did not fall instantly. 
I did not get up from my seat, although it is proper for 
me to say that a friend of mine thinks I did, but I did 
not. I looked around and saw Terry on the floor. I 
looked at him and saw that particular movement of the 



94 



eyes that indicates the presence of death. Of course it 
was a great shock to me. It is impossible for any one 
to see a man in the full vigor of life, with all those facul- 
ties that constitute life instantly extinguished without 
being affected, and I was. I looked at him for a mo- 
ment, then went around and looked at him again, and 
passed on. Great excitement followed. A gentleman 
came to me, whom I did not know, but T think it was 
Mr. Lidgerwood, who has been examined as a witness 
in this case, and said : ' What is this ?' I said : ' I am 
a Justice of the Supreme Court of the United States. 
My name is Judge Field. Judge Terry threatened my 
life and attacked me, and the depvity marshal has shot 
him.' The deputy marshal was perfectly cool and col- 
lected, and stated : ' I am a deputy marshal, and I have 
shot him to protect the life of Judge Field.' I cannot 
give you the exact words, but I give them to you as near 
as I can remember them. A few moments afterwards 
the deputy marshal said to me : ' Judge, I think you 
had better go to the car.' I said, ' Very well.' Then 
this gentleman, Mr. Lidgerwood, said : ' I think you 
had better.' And with the two I went to the car. I 
asked Mr. Lidgerwood to go back and get my hat and 
cane, which he did. The marshal went with me, re- 
mained some time, and then left his seat in the car, and, 
as I thought, went back to the dining-room. (This is, 
however, I am told, a mistake, and that he only went to 
the end of the car.) He returned, and either he or 
some one else stated that there was great excitement ; 
that Mrs. Terry was calling for some violent proceed- 
ings. I must say here that, dreadful as it is to take 
life, it was only a question of seconds whether my life 
or Judge Terry's life should be taken. I am firmly con- 
vinced that had the marshal delayed two seconds both 
he and myself would have been the victims of Terry. 

" In answer to a question whether he had a pistol 
or other weapon on the occasion of the homicide, 



95 



Justice Field replied : ' No, sir. I have never had on 
luy person or used a weapon since I went on the bencli 
of the Sni^reme Court of this State, on the 13th of Oc- 
tober, 1857, except once, when, years ago, I rode over 
the Sierra Nevada mountains in a buggy with General 
Hutchinson, and at that time I took a pistol with me 
for protection in the mountains. With that exception, 
I have not had on my person, or used, any ]iistol or 
other deadly weapon.'" 

Judge Terry had fallen very near the place where he 
first stopped, near the seat occupied by Justice Field 
at the table. 

Neagle testified that if Justice Field had had a 
weapon, and been active in using it, he was at such 
a disadvantage, seated as he was, with Terry standing 
over him, that he would have been unable to raise his 
hand in his own defense. 

A large number of witnesses were examined, all of 
whom agreed upon the main facts as above stated. 
Some of them distinctly heard the blows administered 
by Terry upon Justice Field's face and head. All 
testified to the loud warning given Terry by Neagle 
that he was an officer of the laAv, accompanied by his 
command that Terry should desist. It was all the 
work of a few seconds. Terry's sudden attack, the 
quick progress of which, from the first blow, was 
neither arrested nor slackened until he was disabled 
by the bullet from Neagie's pistol, could have been 
dealt with in no other way. It was evidently a ques- 



96 



tion of the instaut whether Terry's knife or Neagle's 
pistol should prevail. Says Neagle : 

" He never took his eyes off me after he looked at 
me, or I mine off him. I did not hear him say any- 
thing. The only thing was he looked like an infuriated 
giant to me. I believed if I waited two seconds I 
should have been cut to pieces. I was within four 
feet of him." 

Q. " What did the motion that Judge Terry made 
with his right hand indicate to you? " 

A. " That he would have had that knife out there 
within another second and a half, and trying to cut 
my head off." 

Terry, in action at such a time, from all accounts, 
was more like an enraged wild animal than a human 
being. The supreme moment had arrived to which he 
had been looking forward for nearly a year, when the 
life of the man he hated was in his hands. He had 
repeatedly sworn to take it. Not privately had he 
made these threats. With an insolence and an audac- 
ity born of lawlessness and of a belief that he could hew 
his way with a bowie-knife in courts as well as on the 
streets, he had publicly sentenced Judge Field to 
death as a penalty for vindicating the majesty of the 
law in his imprisonment for contempt. 

It would have been the wildest folly that can be 
conceived of for the murderous assault of such a man 
to have been met with mild persuasion, or an attempt 
to arrest him. As well order a hungry tiger to desist 



97 



from springing at his prey, to sheatlie his outstretched 
claws and suffer himself to be bound, as to have met 
Terry with anything less than the force to which he 
was himself appealing. Every man who knows any- 
thing of the mode of life and of quarrelling and fight- 
ing among the men of Terry's class knows full well 
that when they strike a blow they mean to follow it up 
to the death, and they mean to take no chances. The 
only way to prevent the execution of Terry's revenge- 
ful and openly avowed purpose was by killing him on 
the spot. Only a lunatic or an imbecile or an accom- 
plice would have pursued any other course in Neagle's 
place than the one he pursued, always supposing he 
had Neagle's nerve and cool self-possession to guide 
him in such a crisis. 

While this tragedy was being enacted Mrs. Terry 
was absent, having returned to the car for the satchel 
containing her pistol. Before she returned, the shot 
had been fired that defeated the conspiracy between 
her and her husband against the life of a judge for 
the performance of his official duties. She returned 
to the hotel with her satchel in her hand just as her 
husband met his death. The manager of the hotel 
stopped her at the door she was entering, and seized 
her satchel. She did not relinquish it, but both 
struggled for its possession. A witness testified that 
she screamed out while so struggling : " Let me get at 



98 



it ; I will fix him." Many witnesses testified to her 
frantic endeavor to get the pistol. She called upon the 
crowd to hang the man that killed Judge Terry, and 
cried out, " Lynch Judge Field." Again and again she 
made frantic appeals to those present to lynch Judge 
Field. She tried to enter the car where he was, but 
was not permitted to do so. She cried out, " If I had 
my pistol I would fix him." 

The testimony subsequently taken left no room to 
doubt that Terry had his deadly knife in its place in 
his breast at the time he made the attack on Justice 
Field. As the crowd were all engaged in breakfasting, 
his movements attracted little attention, and his motion 
toward his breast for the knife escaped the notice of 
all but Neagle and one other witness. Neagle rushed 
between Terry and Justice Field, and the latter had not 
a complete view of his assailant at the moment Avhen 
the blow intended for him was changed into a move- 
ment for the knife with which Judge Terry intended to 
dispose of the alert little man, with whom he had had 
a former experience, and who now stood between him 
and the object of his greater wrath. 

But the conduct of Mrs. Terry immediately after the 
homicide was proof enough that her husband's knife 
had been in readiness. The conductor of the train 
swore that he /saw her lying over the body of her hus- 
band about a minute, and when she rose up she 



99 



unbuttoned his vest and said : " You may search him ; 
he has got no weapon on him." Not a word had been 
said about his having had a weapon. No one had made 
a movement towards searching him^ as ought to have 
been done; but this woman, who had been to the car 
for her pistol and returned with it to join, if necessary, 
in the murderous work, had all the time and opportun- 
ity necessary for taking the knife from its resting-place 
imder his vest, smearing one of her hands with his 
blood, which plainly showed where it had been and 
what she had been doing. Neagle could not search 
the body, for his whole attention was directed to the 
protection of Justice Field. Mrs. Terry repeated the 
challenge to search the body for the knife after it had 
been removed. This showed clearly that the idea 
uppermost in her mind was to then and there manu- 
facture testimony that he had not been armed at all. 
Her eagerness on this subject betrayed her. Had she 
herself then been I searched, after rising from Terry's 
body, the knife would doubtless have been found con- 
cealed upon her person. A number of witnesses tes- 
tified to her conduct as above described. She said 
also: "You will find that he has no arms, for I took 
them from him in the car, and I said to him that I did 
not want him to shoot Justice Field, but I did not 
object to a tist bout." I 

This reference to a fist bout was, of course, an 



100 



admission that they had premeditated the assault. It 
was Judge Terry's knife and not a pistol that Judge 
Field had to fear. Terry's threats had always pointed 
to some gross indignity that he would put upon Justice 
Field, and then kill him if he resented or resisted it. 
One of his threats was that he would horsewhip Judge 
Field, and that if he resented it he would kill him. In 
short, his intentions seem to have been to commit an 
assassination in alleged self-defense. 

The train soon left the station for San Francisco. 
A constable of Lathrop had taken the train, and ad- 
dressing Neagle told him that he would have to arrest 
him. This officer had no warrant and did not himself 
witness the homicide. Justice Field told him that he 
ought to have a warrant before making the arrest, re- 
marking, if a man should shoot another when he was 
about to commit a felony, such as setting tire to your 
house, you would not arrest him for a murder ; or if a 
highwayman got on the train to plunder. The officer 
replied very courteouslj' by the suggestion that there 
would have to be an inquest. Neagle at once said, '' I 
am ready to go," thinking it better to avoid alF contro- 
versy, and being perfectly willing to answer anywhere* 
for what he had done. I Arriving at the next station 
(Tracy), Neagle and the officer took a buggy and went 
to the county jail at Stockton. Thus was a deputy 
marshal of the United States withdrawn from the 



101 



service of his Government while engaged in a most 
important and as yet unfinished dnty because he had 
with rigid faithfuhiess performed that duty. He was 
arrested by an officer who had no warrant and had not 
witnessed the homicide, and lodged in jail. 

Meanwhile a detective in San Francisco received a 
telegram from the sherifl' of San Joaquin county to 
arrest Judge Field. Supposing it to be his duty to 
comply with this command, the detective crossed the 
bay to meet the train for that purpose. Marshal 
^Franks said to him : " You shall not arrest him. You 
have no right to do so. It would be an outrage, and 
if you attempt it I will arrest you." j 

The news of these exciting events produced an in- 
tense excitement in San Francisco. Upon his arrival 
at this place, under the escort of the marshal and 
many friends. Justice Field repaired to his quarters in 
the Palace Hotel. 



CHAPTER XIV. 

SARAH ALTHEA TERRY CHARGES JUSTICE FIELD AND DEPUTY 
MARSHAL NEAGLE WITH MURDER. 

The body of Judge Terry was taken from Lathrop 
to Stockton, accompanied by his wife, soon after his 
death. On that very evening Sarah Althea Terry 
swore to a comphiint before a justice of the peace 
named Swain, charging Justice Field and Deputy 
Marshal Neagle with murder. After the investigation 
before the coroner Assistant District Attorney Gibson 
stated that the charge against Justice Field would be 
dismissed, as there was no evidence whatever to con- 
nect him with the killing. 

Mrs. Terry did not see the shooting and was not in 
the hotel at the time of the homicide. Having, there- 
fore, no knowledge upon which to base her statement, 
her affidavit was entitled to no greater consideration 
than if it had stated that it was made solely upon her 
belief without any positive information on the subject. 

Only the most violent of Terry's friends favored the 
wanton indignity upon Justice Field, and his arrest, 
but they had sufficient influence with the district attor- 
ney, Mr. White, a young and inexperienced lawyer, to 
carry him along with them. The justice of the peace 



108 



before whom Sarah Althea had laid the information 
issued a warrant on the following day for the arrest 
both of Justice Field and Neagle. From this time 
this magistrate and the district attorney appeared to 
act under orders from Mrs. Terr3^ 

The preliminary examination was set for Wednesday 
of the following week, during which time the district 
attorney stated for publication that Justice Field 
would have to go to jail and stay there during the six 
intervening days. It was obvious to all rational minds 
that Mrs. Terrj^'s purpose was to use the machinery of 
the magistrate's court for the purpose of taking Judge 
Field to Stockton, where she could execute her threats 
of killing him or having him killed ; and if she should 
fail to do so, or postpone it, then to have the satisfac- 
tion of placing a justice of the Supreme Court of the 
United States in a prisoner's cell, and hold him there 
for six days awaiting an examination, that being the 
extreme length of time that he could be so held under 
the statute. The district attorney was asked if he had 
realized the danger of bringing Justice Field to Stock- 
ton, where he might come in contact with Mrs. Terry. 
The othcer replied : 

•' We had intended that if Justice Field were brought 
here, Mrs. Terry Avould be placed under the care of 
■her friends, and that all precautious to prevent any 
difficulty that was in the power of the district attorney 



104 



Avould be taken." That was to say, Mrs. Terry would 
do no violence to Justice Field unless " her friends " 
permitted her to do so. As some of them were pos- 
sessed of the same murderous feelings towards Justice 
Field as those named here, the whole transaction had 
the appearance of a conspiracy to murder him. 

No magistrate can lawfully issue a warrant without 
sufficient evidence before him to show probable cause. 
It was a gross abuse of power and an arbitrary and 
lawless act to heed the oath of this frenzied woman, 
who notoriously had not witnessed the shooting, and 
had, but a few hours before, angrily insisted upon hav- 
ing her own pistol returned to her that she, herself, 
might kill Justice Field. It was beyond belief that the 
magistrate believed that there was probabb cause, or 
the slightest appearance of a cause, upon which to base 
the issue of the warrant. 

Neagle was brought into court at Stockton at 10 
o'clock on the morning after the shooting, to wit, on 
Thursday, the 15th, and his preliminary examination 
set for Wednesday, the 21st. Bail could not be given 
prior to that examination. This examination could 
have proceeded at once, and a delay of six days can 
only be accounted for by attributing it to the malice 
and vindictiveness of the woman who seemed to be in 
charge of the proceedings. 

The keen disappointment of Mrs. Terry, and those 



105 



who were under her influence, at Judge Terry's failure 
to murder Justice Field, must have been greatly 
soothed by the prospect of having yet another chance 
at the latter's life, and, in any event, of seeing him in 
a cell in the jail during the six days for which the ex- 
amination could be delayed for that express purpose. 
The sheriff of San Joaquin county proceeded to San 
Francisco with the warrant for his arrest on Thursday 
evening. In company with the chief of police and 
Marshal Franks, he called upon Justice Field, and 
after a few momyuts' conversation it was arranged that 
he should present the warrant at one o'clock on the 
following day, at the building in which the federal 
courts are held. 



CHAPTEE XV. 

JUSTICE field's arrest AND PETITION FOR RELEASE 
ON HABEAS CORFUS. 

At the lappointed hour Justice Field awaited the 
sheriff iu his chambers, surrounded by friends, includ- 
ing judges, ex-judges, and members of the bar. As 
the sheriff entered Justice Field arose and pleasantly 
greeted him. The sheriff bore himself with dignity, 
and with a due sense of the extraordinary proceeding 
in which his duty as an officer required him to be a 
participant. With some agitation he said : " Justice 
Field, I presume you are aware of the nature of ray 
errand." " Yes," replied the Justice, " proceed with 
your duty ; I am ready. An officer should always do 
his duty." The sheriff* stated to him that he had a 
warrant, duly executed and authenticated, and asked 
him if he should read it. "I will waive that, Mr. 
Sheriff," replied the Justice. The sheriff then handed 
him the warrant, which he read, folded it up and 
handed it })ack, saying pleasantly : " I recognize your 
authority, sir, and submit to the arrest ; I am, sir, in 
your custody." 

Meanwhile a petition had been prepared to be pre- 
sented to Judge Sawyer for a writ of haheas corpus. 



107 



returnable at ouce before the United States court. As 
soon as the arrest was made the petition was signed 
and presented to Judge Sawyer, who ordered the writ 
to issue returnable forthwith. In a very few minutes 
IT. S. Marshal Franks served the writ on the sheriff. 

While the proceedings looking to the issue of the 
writ were going on, Justice Field had seated himself, 
and invited the sheriff to be seated. The latter com- 
plied with the invitation, and began to say something 
in regard to the unpleasant duty which had devolved 
upon him, but Justice Field promptly replied : " Not 
so, not so ; you are but doing your plain duty, and I 
mine in submitting to arrest. It is the first duty of 
judges to obey the law." 

As soon as the habeas corpus writ had been served, 
the sheriff said he was ready to go into the court. 
" Let me walk with you," said Justice Field, as they 
arose, and took the sheriff's arm. In that way they 
entered the court-room. Justice Field seated himself 
in one of the chairs usually occupied by jurors. Time 
was given to the sheriff' to make a formal return to the 
writ, and in a few minutes he formally presented it. 
The petition of Judge Field for the writ set forth his 
official character, and the duties imposed upon him by 
law, and alleged that he had been illegally arrested, 
while he was in the discharge of those duties, and that 
his illegal detention interfered with and prevented him 
from discharging them, j 



108 



Then followed a statement of the facts, showing the 
arrest and detention to be illegal. This statement em- 
braced the principal facts connected with the contempt 
proceedings in 1888, and the threats then and there- 
after made by the Terrys of violence upon Justice 
Field ; the precautions taken in consequence thereof 
by the Department of Justice for his protection from 
violence at their hands, and the murderous assault 
made upon him, and his defense by Deputy Marshal 
Neagle, resulting in the death of Terry, and that he, the 
petitioner, in no manner defended or protected himself, 
and gave no directions to the deputy marshal, and that 
he was not armed with any weapon. The petition then 
states : " That under the circumstances detailed, the 
said Sarah Althea Terry, as your petitioner is informed 
and believes, and upon such information and belief 
alleges, falsely and maliciously swore out the warrant 
of arrest hereinbefore set out against 3'our petitioner, 
without any further basis for the charge of murder 
than the facts hereinbefore detailed, and that the war- 
rant aforesaid was issued by such justice of the peace, 
without any just or probable cause therefor. * * * 
And your petitioner further represents that the charge 
against him, and the warrant of arrest in the hands of 
said sheriff, are founded upon the sole affidavit of Mrs. 
Sarah Althea Terry, who was not present and did not 
see the shooting which caused the death of said David 
S. Terry." 



109 



In order to show the little reliance to be placed in 
the oath of Mrs. Terry, the petition stated : " That in a 
suit brought by William Sharon, now deceased, against 
her before her marriage to the said Terr}-, it was 
proved and held by tlie Circuit Court of the United 
States that she had committed the forgery of the docu- 
ment produced in that case, and had attempted to sup- 
port it by perjury and subornation of perjury, and had 
also been guilty of acts and conduct showing herself to 
be an abandoned woman, without veracity. " '" * 

" Your petitioner further represents that the aban- 
doned character of the said Sarah Altliea Terry, and 
the fact that she Avas found guilty of perjury and for- 
gery in the case above mentioned by the said Circuit 
Court, and the fact of the revengeful malice entertained 
toward your petitionei' by said Sarah Althea Terry, are 
notorious in the State of California, and are notorious 
in the city of Stockton, and as your petitioner believes 
are well known to the district attorney of the said 
county of San Joaquin, fyid also to the said justice of 
the peace who issued the said warrant ; and your peti- 
tioner further alleges that had either of the said officers 
taken any pains whatever to ascertain the truth in the 
case, he would have ascertained and known that 
there was not the slightest pretext or foundation for 
any such charge as was made, and also that the affi- 
davit of the said Sarah Althea Terry was not entitled 
to the slightest consideration whatever. 



no 

" Yonr petitioner further states that it is to him in- 
comprehensible how an}' man, acting in a consideration 
of duty, coukl have listened one moment to charges 
from such a source, and without having sought some 
confirmation from disinterested witnesses ; and your 
petitioner believes and charges that the whole object 
of the proceeding is to subject your petitioner to the 
humiliation of arrest and confinement at Stockton, 
where the said Sarah Althea Terry may be able, by the 
aid of partisans of hers, to carry out her long-continued 
and repeated threats of personal violence upon your 
petitioner, and to prevent your petitioner from dis- 
charging the duties of his ofiice in cases pending 
against her in the federal court at San Francisco." 

The sheriff's return was as follows : 

" Return of sherift' of San Joaquin county. Gala., 
County of San Joaquin, State of California : 

" Shekiff's Office. 
" To the UonoraUe Circuit Court of the United States 
for the Northern District of California : 
" I hereby certify and return that before the coming 
to me of the hereto-annexed writ of haheas corpus, the 
said Stephen J. Field was committed to my custody, 
and is detained by me by virtue of a warrant issued 
out of the justice's court of Stockton township. State 
of California, county of San Joaquin, and by the 
endorsement made upon said warrant. Copy of said 
warrant and endorsement is annexed hereto, and made 
a part of this return. Nevertheless, I have the body 



Ill 

of the said Steplien J. Field before the honorahle 
court, as I am in the said writ CQmmaiided. 
" Aui^iist IG, 1889. 

"THOMAS CUNNINGHAM, 

" Sheriff', Sail Jocujuin Co., Cnlifoninir 

111 order to give the petitioner time to traverse the 
return if he thought it expedient to do so, and to give 
him and the State time to produce witnesses, the fur- 
ther hearing upon the return was adjourned until the 
following Thursday morning, the 22d, and the peti- 
tioner was released on his recognizance with a bond 
fixed at So,000. 

On the same day a petition on the part of Neagle 
was presented to Judge Saw3^er asking that a writ of 
habeas corpus issue in his behalf to Sheritf Cunning- 
ham. The petition was granted at once, and served 
upon the sheriff immediately after the service of the writ 
issued on behalf of Justice Field. Early on the morn- 
ing of Saturda}', August 17, Neagle was brought from 
Stockton by the sheriff at 4.30 A. M. District Attor- 
ney White and Mrs. Terry's lawyer, Maguire, were 
duly notified of this movement and were passengers 
on the same train. At 10.30 Sheriff" Cunningham ap- 
peared in the Circuit Court with Neagle to respond 
to the writ. He returned that he held Neagle in 
custody under a warrant issued by a justice of the 
peace of that county, a copy of which he produced ; 
and also a copy of the aiSidavit of Sarah Althea Terry 



112 



upon which the warrant was issued. A traverse to 
that return was then filed, presenting various grounds 
why the petitioner should not be held, the most im- 
portant of which were that an officer of the United 
States, specially charged with a particular duty, that 
of protecting one of the justices of the Supreme Court 
of the United States whilst engaged in the perform- 
ance of his duty, could not, for an act constituting the 
very performance of that duty, be taken from the fur- 
ther discharge of his duty and imprisoned by the 
State authorities, and that when an officer of the 
United States in the discharge of his duties is charged 
with an offense consisting in the performance of those 
duties, and is sought to be arrested, and taken from 
the further performance of them, he can be brought 
before the tribunals of the nation of which he is an 
officer, and the fact then inquired into. The attorney- 
general of the State appeared with the district attorney 
of San Joaquin county, and contended that the ofiense 
of which the petitioner was charged could only be in- 
quired into before the tribunals of the State. 



CHAPTER XVI. 

JUDGE terry's funeral — REFUSAL OF THE SUPREME COURT 
OF CALIFORNIA TO ADJOURN ON THE OCCASION. 

The funeral of Judge Terry occurred on Friday, the 
16th. An unsuccessful attempt was made for a public 
demonstration. The fear entertained by some that 
eulogies of an incendiary character would be delivered 
was not realized. The funeral passed off without ex- 
citement. The rector being absent, the funeral service 
was read by a vestryman of the church. 

On the day after Judge Terry's death the fol- 
lowing proceedings occurred in the Supreme Court of 
the State : 

Late in the afternoon, just after the counsel in a 
certain action had concluded their argument, and be- 
fore the next cause on the calendar was called, James 
L. Crittenden, Esq., Avho was accompanied by W. T. 
Baggett, Esq., arose to address the court. He said : 
" Your honors, it has become my painful and sad duty 
to formally announce to the court the death of a former 
chief justice " 

Chief Justice Beatty: "Mr. Crittenden, I think that 
is a matter which should be postponed until the court 
has had a consultation about it." 



114 



The court then, without leaving the bench, held a 
whispered consultation. Mr. Crittenden then went on to 
say : " I was doing this at the request of several friends 
of the deceased. It has been customary for tiie court 
to take formal action prior to the funeral. In this in- 
stance, I understand the funeral is to take place to- 
morrow." 

Chief Justice Beatty: "Mr. Crittenden, the mem- 
bers of the court wish to consult with each other on 
this matter, and you had better postpone your motion 
of formal announcement until to-morrow morning." 

Mr. Crittenden and Mr. Baggett then withdrew from 
the court-room. 

On the following day, in the presence of a large 
assembly, including an unusually hirge attendance 
of attorneys, Mr. Crittenden renewed his motion. He 
said : 

" If the court please, I desire to renew the matter 
which I began to present last evening. As a friend — a 
personal friend — of the late Judge Terry, I should deem 
myself very cold, indeed, and very far from discharging 
the duty which is imposed upon that relation, if I did 
not present the matter which I propose to present to 
this bench this morning. I have known the gentleman 
to whom I have reference for over thirty 3ears, and I 
desire simply now, in stating that I make this motion, 
to say that the friendship of so many years, and the 
acquaintance and intimacy existing between that gentle- 
man and his family and myself for so long a period, 
require that I should at this time move this court, as a 



115 



court, out of recollection for the memory of the man 
who presided in the Supreme Court of this State for so 
many years with honor, ability, character, and integrity, 
and, therefore, I ask this court, out of respect for his 
memory, to adjourn during the day on which he is to 
be buried, which is to-day." 

Chief Justice Beatty said : 

" I regret very much that counsel should haye per- 
sisted in making this formal announcement, after the 
intimation from the court. Upon full consultation we 
thought it would be better that it should not be done. 
The circumstances of Judge Terry's death are notori- 
ous, and under these circumstances this court had de- 
termined that it would be better to pass this matter in 
silence, and not to take any action upon it ; and that is 
the order of the court." 

The deceased had been a chief justice of the 
tribunal which, bj- its silence, thus emphasized its 
condemnation of the conduct by which he had placed 
himself without the pale of its respect. 



CHAPTER XVII. 

HABEAS CORPUS PROCEEDINGS IN JUSTICE FIELD's CASE. 

Ou Thursday, August 22d, the hearing of the Jiaheas 
corpus case of Justice Field commenced in the 
United States Circuit Court, under orders from the 
Attorney-General, to whom a report of the whole 
matter had been telegraphed. The United States dis- 
trict attorney appeared on behalf of Justice Field. 
In addition to him there also appeared as counsel for 
Justice Field, Hon. Richard T. Mesick, Saml. M. 
Wilson, Esq., and W. F. Herrin, Esq. The formal re- 
turn of the writ of habeas corpus had been made by 
the sheriff of San Joaquin county on the 16th. To 
that return Justice Field presented a traverse, which 
was in the following language, and was signed and 
sworn to by him : 

" The petitioner, Stephen J. Field, traverses the re- 
turn of the sheriff of San Joaquin county. State of Cal- 
ifornia, made by him to the writ of haheas corpus by the 
circuit judge on the ninth circuit, and made returnable 
before the Circuit Court of said circuit, and avers : 

" That he is a justice of the Supreme Court of the 
United States, allotted to the ninth judicial circuit, and 
is now and has been for several weeks in California, in 
attendance upon the Circuit Court of said circuit in the 
discharge of his judicial duties ; and, further, that the 



117 



said warrant of the justice of the peace, H. V. J. Swain, 
in Stockton, California, issued on the 14th day of Au- 
gust, 1889, under which the petitioner is held, was issued 
by said justice of the peace without reasonable or proba- 
ble cause, upon the sole affidavit of one Sarah Althea 
Terry, who did not see the commission of the act which 
she charges to have been a murder, and who is herself 
a woman of abandoned character, and utterly unworthy 
of belief respecting any matter whatever ; and, further, 
that the said warrant was issued in the execution of a 
conspiracy, as your petitioner is informed, believes, and 
charges, between the said Sarah Althea Terry and the 
district attorney. White, and the said justice of the 
peace, H. V. J~. Swain, and one E. L. Colnon, of said 
Stockton, to prevent by force and intimidation your 
petitioner from discharging the duties of his office here- 
after, and to injure him in his person on account of the 
laAvful discharge of the duties of his office heretofore, 
by taking him to Stockton, where he could be subjected 
to indignities and humiliation, and where they might 
compass his death. 

" That the said conspiracy is a crime against the 
United States, under the laws thereof, and was to be 
executed by an abuse of the process of the State court, 
two of said conspirators being officers of the said county 
of San Joaquin, one the district attorney and the other 
a justice of the peace, the one to direct and the other 
to issue the warrant upon which your petitioner could 
be arrested. 

"And the petitioner further avers that the issue of 
said writ of habeas corpus and the discharge of j^our 
petitioner thereunder were and are essential to defeat 
the execution of the said conspiracy. 

"And your petitioner further avers that the accusa- 
tion of crime against him, upon which said warrant was 
issued, is a malicious and malignant falsehood, for 
which thex'e is not even a pretext ; that he neither ad- 



118 



vised nor had an}^ knowledge of the intention of any 
one to commit the act which resulted in the death of 
David S. Terry, and that he has not carried or used any 
arm or Aveapon of any kind for nearly thirty years. 

"All of which your petitioner is ready to establish 
by full and competent proof. 

" Wherefore your petitioner prays that he may be 
discharged from said arrest and set at liberty. 

"STEPHEN J. FIELD." 

The facts alleged in this document were beyond dis- 
pute, and constituted an outrageous crime, and one for 
which the conspirators were liable to imprisonment for 
a term of six years, under section 5518 of the Revised 
Statutes of the United States. To this traverse the 
counsel for the sheriflf filed a demurrer, on the ground 
that it did not appear by it that Justice Field Avas in 
custody for an act done or omitted in pursuance of any 
law of the United States, or of any order or process 
or decree of any court or judge thereof, and it did not 
appear that he was in custody in violation of the Con- 
stitution or any law or treaty of the United States. 
The case was thereupon submitted with leave to coun- 
sel to file briefs at any time before the 27th of August, 
to which time the further hearing was adjourned. 

Before that hearing the Governor of the State ad- 
dressed the following communication to the attorney- 
general : 



119 



" Executive Department, 

" State of California, 
"Sacramento, August 21, 1889. 
" Hon. A. G. Johnston, 

"Attorney-General^ Sacranienio. 
" Dear Sir : The arrest of Hon. Stephen J. Field, a 
justice of the Supreme Court of the United States, on 
the unsupported oath of a woman who, on the very day 
the oath was taken, and often before, threatened his 
life, will be a burning disgrace to the State unless dis- 
avowed. I therefore urge upon you the propriety of 
at once instructing the district attorney of San Joaquin 
county to dismiss the unwarranted proceedings against 
him. 

" The question of the jurisdiction of the state courts 
in the case of the deputy United States marshal, 
Neagle, is one for argument. The unprecedented in- 
dignity on Justice Field does not admit of argument. 
" Yours truly, 

"R. W. WATEEMAN, 

'■'Governor.'''' 

This letter of /Governor Waterman rang out like an 
alarm bell, warning the chief law officer of the State 
that a subordinate of his was prostituting its judicial 
machinery to enable a base woman to put a gross in- 
dignity upon a justice of the Supreme Court of the 
United States, whom she had just publicly threatened 
to kiU, and also to aid her in accomplishing that pur- 
pose. The Avretched proceeding had already brought 
upon its authors indignant denunciation and merciless 
ridicule from every part of the Union. The attorney- 
general responded to the call thus made upon him by 



120 



instructing the district attorney to dismiss the charge 
against Justice Field, because no evidence existed to 
sustain it. 

The rash young district attorney lost no time in ex- 
tricating himself from the position in which the arrest 
of Justice Field had placed him. On the 26tli of 
August, upon his motion, and the filing of the attorney- 
general's letter, the charge against Justice Field was 
dismissed by the justice of the peace who had issued 
the warrant against him. 

The dismissal of this charge \ released him from the 
sheriff's claim to his custody, and the habeas corpus 
proceedings in his behalf fell to the ground. On the 
27th, the day appointed for the further hearing, the 
sheriff announced that in compliance with the order of 
the magistrate he released Justice Field from custody, 
whereupon the case of habeas crn'pus was dismissed. 

In making the order, Circuit Judge Sawyer severely 
animadverted on what he deemed the shameless pro- 
ceeding at Stockton. He said : 

" We are glad that the prosecution of Mr. Justice 
Field has been dismissed, founded, as it was, upon the 
sole, reckless, and as to him manifestly false affidavit 
of one whose relation to the matters leading to the tra- 
gedy, and whose animosity towards the courts and 
judges who have found it their duty to decide against 
her, 'and especialW towards Mr. Justice Field, is a part 
of the judicial and notorious public history of the coun- 
try. 



121 



" It was, under the circumstances, and npon the sole 
affidavit produced, especially after the coroner's in- 
quest, so far as Mr. Justice Field is con^-erned, a shame- 
less proceeding, and, as intimated by the Governor of 
the Commonwealth, if it had been further persevered in, 
would have been a lasting disgrace to the State. 

" While a justice of the Supreme Court of the United 
States, like every other citizen, is amenable to the laws, 
he is not likely to commit so grave an offense as mur- 
der, and should he be so unfortunate as to be unavoid- 
ably involved in any way in a homicide, he could not 
attbrd to escape, if it were in his power to do so ; and 
when the act is so publicly performed by another, as in 
this instance, and is observed by so many witnesses, 
the officers of the law should (certainly have taken some 
little pains to ascertain the facts before proceeding to 
arrest so distinguished a dignitary, and to attempt to 
incarcerate him in prisons with felons, or to put him in 
a position to be further disgraced, and perhaps as- 
saulted by one so violent as to be publicl}' reported, not 
only then but on numerous previous occasions, to have 
threatened his life. 

-'We are extremely gratified to find that, through the 
action of the chief magistrate, and the attornej'-gen- 
eral, a higher officer of the law, we shall be spared the 
necessity of further inquiring as to the extent of the 
remedy afforded the distinguished petitioner, by the 
Constitution and laws of the United States, or of en- 
forcing such remedies as exist, and that the stigma cast 
upon the State of California by this hasty and, to call 
it by no harsher term, ill-advised arrest will not be in- 
tensified by further prosecution." i| 

Thus ended this most remarkable attempt upon the 
liberty of a United States Supreme Court Justice, under 
color of State authority, the execution of which would 
again have placed his life in great peril. 



122 



The grotesque feature of the performance was aptly 
presented by the following imaginary dialogue which 
appeared in an Eastern paper : 

Newsboy : " Man tried to kill a judge in California !" 
Customer : " What was done about it ?" 
Newsboy : " Oh ! They arrested the judge." j 

The illegality of Justice Field's arrest will be per- 
fectly evident to whoever will read sections 811, 812, 
and 813 of the Penal Code of California. These sec- 
tions provide that no warrant can be issued by a magis- 
trate until he has examined, on oath, the informant, 
taken depositions setting forth the facts tending to 
establish tli^ commission of the offense and the guilt of 
the accused, and himself been satisfied by these depo- 
sitions that there is reasonable ground that the person 
accused has committed the offense. None of these 
requirements had been met in Justice Field's case. ^ 

It needs no lawyer to understand that a magistrate 
violates the plain letter as well as the spirit of these 
provisions of law when he issues a warrant without 
first having before him some evidence of the probable, 
or at least the possible, guilt of the accused. If this 
were otherwise, private malice could temporarily sit in 
judgment upon the object of its hatred, however blame- 
less, and be rewarded for perjury by being allowed the 
use of our jails as places in which to satisfy its ven- 
geance. Such a view of the law made Sarah Althea 



1:?:^ 



the magistrate at Stockton on the 14th of August, and 
Justice Swain her obsequious amanuensis. Such a 
view of the hiw would enable any convict who had just 
served a term in the penitentiary to treat himself to 
the luxury of dragging to jail the judge wlio sentenced 
him, and keeping him there without bail as long as 
the magistrate acting for him could be induced to de- 
lay the examination. 

The arrest of Justice Field was an attempt to kidnap 
him for a foul purpose, and if the United States cir- 
cuit judge had not released him he would have been 
the victim of as arbitrary and tyrannical treatment as 
is ever meted oat in Kussia to the most dangerous of 
nihilists, to punish him for having narrowly escaped 
assassination b}' no act or etibrt of his own. 



CHAPTER XVIII. 

HABEAS CORPUS PROCEEDINGS IN NEAGLE's CASE. 

This narrative would not be complete without a 
statement of the proceedings in the United States Cir- 
cuit Court, and in the United States Supreme Court 
on appeal, in the habeas coiyvs proceedings in the 
case of Neagle, the deputy marshal, whose courageous 
devotion to his official duties had saved the life of 
Justice Field at the expense of that of his would-be 
assassin. We have already seen that Neagle, being in 
the custody of the sheriff of San Joaquin county, upon 
a charge of murder in the shooting of Judge Terry, 
had presented a petition to the United States Circuit 
Court for a writ of habeas co7j>i/s to the end that he 
might thereby be restored to his liberty. 

A writ was issued, and upon its return, August 17th, 
the sherift" of San Joaquin county produced Neagle and 
a copy of the warrant under which he held him in cus- 
tody, issued by the justice of the peace of that county, 
and also of the affidavit of Sarah Althea Terry, upon 
which the warrant was granted. Neagle being desirous 
of traversing the return of the sheriff, further proceed- 
ings were adjourned until the 22d of the month, and in 
the meantime he was placed in the custody of the 



125 



United States marshal for the district. On the 22d a 
traverse of the return was tiled by him stating the par- 
ticulars of the homicide with which he was charged as 
narrated above, and averring that he was at the time 
of its commission a deputy marshal of the United 
States for the district, acting under the orders of his 
superior, and under the directions of the Attorney- 
General of the United States in protecting the Asso- 
ciate Justice, whilst in the discharge of his duties, from 
the threatened assault and violence of Terry, who had 
declared that on meeting the Justice he would insult, 
assault, and kill him, and that the homicide with which 
the petitioner is charged was committed in resisting 
the attempted execution of these threats in the belief 
that Terry intended at the time to kill the Justice, and 
that but for such homicide he would have succeeded in 
his attempt. These particulars are stated with great 
fullness of detail. To this traverse, which was after- 
wards amended, but not in any material respect, a 
demurrer was interposed for the sherifi" by the district 
attorney of San Joaquin county. Its material point 
was that it did not appear from the traverse that 
Neagle was in the custody of the sherifi" for an act done 
or omitted in pursuance of any law of the United 
States, or any order, process, or decree of any court or 
judge thereof, or in violation of the Constitution or a 
treatv of the United States. Tlie court then considered 



126 



whether it should hear testimony as to the facts of the 
case, or proceed with the argument of the demurrer to 
the traverse. It decided to take the testimony, and to 
hear counsel when the whole case was l)efore it, on the 
merits as well as on the question of jurisdiction. The 
testimony was then taken. It occupied several days, 
and brought out strongly the facts which have been 
already narrated, and need not here be repeated. 
When completed, the question of the jurisdiction of 
the Circuit Court of the United States to interfere in 
the matter was elaborately argued by the attorney-gen- 
eral of the State, and special counsel who appeared 
with the district attorney of San Joaquin county on 
behalf of the State, they contending that the offense, 
with which the petitioner was charged, could only be 
inquired into before a tribunal of the State. Mr. 
Carey, United States district attorney, and Messrs. 
Herrin, Mesick, and Wilson, special counsel, appeared 
on behalf of the petitioner, and contended for the 
jurisdiction, and for the discharge of the petitioner 
upon the facts of the case. They did not pretend that 
any person in the State, be he high or low, might not 
be tried by the local authorities for a crime committed 
against the State, but they did contend that when the 
alleged crime consisted in an act which was claimed to 
have been done in the performance of a duty devolv- 
ing upon him by a law of the United States, it was 



127 



witliin the competency of their courts to inquire, in the 
first instance, whether that act thus done was in the 
performance of a duty devolving upon him ; and if it 
was, that the alleged oftender had not committed a 
crime against the State, and was entitled to be dis- 
charged. Their arguments were marked by great 
ability and learning, and their perusal would be 
interesting and instructive, but space will not allow me 
to give even a synopsis of them. 

The court, in deciding the case, Avent into a full and 
elaborate consideration, not only of its jurisdiction, but 
of ever}^ objection on the merits presented by counsel 
on behalf of the State. Only a brief outline can be 
given. 

The court held that it was within the competency of 
the President, and of the Attorney-General as the head 
of the Department of Justice, representing him, to di- 
rect that measures be taken for the protection of officers 
of the Government whilst in the discharge of their 
duties, and that it was specially appropriate that such 
protection should be given to the justices of the Su- 
preme Court of the United States, whilst thus engaged 
in their respective circuits, and in passing to and from 
them ; that the Attorney-General, representing the Pres- 
ident, was fully justified in giving orders to the marshal 
of the California district to appoint a deputy to look 
specially to the protection of Justices Field and Saw- 



128 



yer from assault and violence threatened by Terry and 
his wife ; and that the deputy marshal, acting under 
instructions for their protection, was justified in any 
measures that were necessary for that purpose, even to 
taking the life of the assailant. 

The court recognized that the Government of the 
United States exercised full jurisdiction, within the 
sphere of its powers, over the whole territory of the 
country, and that when any conflict arose between the 
State and the General Government in the administra- 
tion of their respective powers, the authority of the 
United States njust prevail, for the Constitution de- 
clares that it and the laws of the United States in pur- 
suance thereof "sliall be the supreme law of the land, 
and that the judges in every State shall be bound 
thereby, anything in the Constitution and laws of any 
State to the contrary notwithstanding." The court 
quoted the language of the Supreme Court in Tennessee 
V. Davis (100 U. S. 257, 263), that " It [the General 
Government] can act only through its officers and 
agents, and they must act within the States. If, when 
thus acting and within the scope of their authority, 
those officers can be arrested and brought to trial in a 
State court, for an alleged oftense against the law of 
the State, yet warranted by the Federal authority they 
possess, and if the General Government is powerless to 
interfere at once for their protection — if their protec- 



129 



tion must be left to the action of the State court — the 
operations of the General Government may, at any 
time, be arrested at the will of one of its members. 
The legislation of a State may be unfriendly. It may 
affix penalties to acts done under the immediate direc- 
tion of the National Government and in obedience to 
its laws. It may deny the authority conferred by those 
laws. The State court may administer not only the 
laws of the State, but equally Federal law, in such a 
manner as to paralyze the operations of the Govern- 
ment. And even if, after trial and final judgment in 
the State court, a case can be brought into the United 
States court for review, the officer is withdrawn from 
the discharge of his duty during the pendency of the 
prosecution, and the exercise of acknowledged Federal 
power arrested. We do not think such an element of 
weakness is to be found in the Constitution. The 
United States is a government with authority extend- 
ing over the whole territory of the Union, acting upon 
the States and upon the people of the States. While 
it is limited in the number of its powers, so far as its 
sovereignty extends, it is supreme. No State govern- 
ment can exclude it from the exercise of any authoritj^ 
conferred upon it by the Constitution, obstruct its au- 
thorized officers against its will, or withhold from it, for 
a moment, the cognizance of any subject which that 
instrument has committed to it." To this strong lan- 
guage the Circuit Court added : 



130 



" The very idea of a government composed of ex- 
ecutive, legislative, and judicial departments necessarily 
comprehends the power to do all things, through its 
appropriate officers and agents, within the scope of its 
general governmental purposes and powers, requisite to 
preserve its existence, protect it and its ministers, and 
give it complete efficienc^dn all its parts. It necessarily 
and inherently includes power in its executive depart- 
ment to enforce the laws, keep the national peace with 
regard to its officers while in the line of their duty, and 
protect by its all-powerful arm all the other depart- 
ments and the officers and instrumentalities necessary 
to their efficiency while engaged in the discharge of 
their duties." 

In language attributed to Mr. ex-Secretary Bayard, 
used Avith reference to this very case, which we quote, 
not as a controlling judicial authority, but for its in- 
trinsic, sound, common sense, " The robust and essen- 
tial principle must be recognized and proclaimed, 
that the inherent powers of every government which 
is sufficient to authorize and enforce the judgment of 
its courts are, equally, and at all times, and in all 
places, sufficient to protect the individual judge who, 
fearlessly and conscientiously in the discharge of his 
duty, pronounces those judgments." 

In reference to the duties of the President and the 
powers of the Attorney-General under him, and of the 
latter's control of the marshals of the United States, 
the court observed that the duties of the President are 
prescribed in terse and comprehensive language in 



131 



section 3 of article II of the Constitution, which de- 
chires that " he shall take care that the laws be faith- 
fully executed ;" that this gives him all the authority 
necessarj to accomplish the purposes intended — all 
the authorit}^ necessarily inherent in the office, not 
otherwise limited, and that Congress, added the court, 
in pursuance of powers vested in it, has provided for 
seven departments, as subordinate to the President, to 
aid him in performing his executive functions. Sec- 
tion 346, R. S., provides that "there shall be at the 
seat of government an executive department to be 
known as the Department of Justice, and an Attorney- 
General, who shall be the head thereof." He thus has 
the general supervision of the executive branch of the 
national judiciary, and section 362 provides, as a por- 
tion of his powers and duties, that he " shall exercise 
general superintendence and direction over the at- 
torneys and marshals of all the districts in the United 
States and the Territories as to the manner of dis- 
charging their respective duties ; and the several 
district attorneys and marshals are required to report 
to the Attorney-General an account of their official 
proceedings, and of the state and condition of their 
respective offices, in such time and manner as the 
Attorney-General may direct." Section 788, R. S., 
provides that " the marshals and their deputies shall 
have, in each State, the same powers in executing the 



132 



laws of the United States as the sheriffs and their 
deputies in such State may have, by law, in executing 
the laws thereof." By section 817 of the penal code 
of California the sheriff is a " peace officer," and by 
section 4176 of the political code he is " to preserve 
the peace " and " prevent and suppress breaches of the 
peace." The marshal is, therefore, under the pro- 
visions of the statute cited, " a peace officer," so far as 
keeping the peace in any matter wherein the powers 
of the United States are concerned, and as to such 
matters he has all the powers of the sheriff, as 
peace officer under the laws of the State. He is, in 
such matters, " to preserve the peace " and " prevent 
and suppress breaches of the peace." An assault 
upon or an assassination of a judge of a United States 
court while engaged in any matter pertaining to his 
official duties, on account or by reason of his 
judicial decisions, or action in performing his official 
duties, is a breach of the peace, affecting the authority 
and interests of the United States, and within the 
jurisdiction and power of the marshal or his deputies to 
prevent as a peace ofiicer of the National Government. 
Such an assault is not merel}^ an assault upon the per- 
son of the judge as a man ; it is an assault upon the 
national judiciary, which he represents, and through it 
an assault upon the authority of the nation itself. It 
is, necessarily, a breach of the national peace. As a 



133 



national peace officer, under the conditions indicated, 
it is the duty of tlie marshal and his deputies to pre- 
vent a breach of the national peace by an assault upon 
the authority of the United States, in the person of a 
judge of its highest court, while in the discharge of 
his duty. If this be not so, in the language of the 
Supreme Court, " Why do we have marshals at all?" 
What useful functions can they perform in the economy 
of the National Government ? 

Section 787 of the Revised Statutes also declares 
that " It shall be the duty of the marshal of each 
district to attend the District and Circuit Courts Avhen 
sitting therein, and to execute throughout the district 
all lawful precepts directed to him and issued under 
the authority of the United States, and he shall have 
power to command all necessary assistance in the 
execution of his duty." There is no more authority 
specifically conferred upon the marshal by this section 
to protect the judge from assassination in open court, 
without a specific order or command, than there is to 
protect him out of court, Avhen on the way from one 
court to another in the discharge of his official duties. 
The marshals are in daily attendance upon the judges, 
and performing official duties in their chambers. Yet 
no statute specifically points out those duties or re- 
quires their performance. Indeed, no such places as 
chambers for the circuit judges or circuit justices are 



134 



mentioned at all in the statutes. Yet the marshal is 
as clearly authorized to protect the judges there as in 
the court-room. All business done out of court by 
the judge is called chamber business. But it is not 
necessary to be done in what is usually called cham- 
bers. Chamber business may be done, and often is 
done, on the street, in the judge's own house, at the 
hotel where he stops, when absent from home, or it 
may be done in transitu, on the cars in going from 
one place to another within the proper jurisdiction to 
hold court. Mr. Justice Field could, as well, and as 
authoritatively, issue a temporary injunction, grant a 
writ of habeas corpus, an order to show cause, or do 
any other chamber business for the district in the 
dining-room at Lathrop, as at his chambers in San 
Francisco, or in the court-room. The chambers of 
the judge, where chambers are provided, are not an 
element of jurisdiction, but are a convenience to the 
judge, and to suitors — places where the judge at 
proper times can be readily found, and the business 
conveniently transacted. 

But inasmuch as the Eevised Statutes of the United 
States (sec. 753) declare that the writ of habeas co/j'ns 
shall not extend to " a prisoner in jail unless where he 
is in custody — for an act done or omitted in pursuance 
of a law of the United States, or of an order, process, 
or decree of a court or judge thereof, or in custody in 



135 



violation of the Constitution or of a law or treaty of the 
United States," it was urged in the argument b}^ counsel 
for the State that there is no statute whicli specitically 
makes it the duty of a marshal or deputy marshal to 
protect the judges of the United States whilst out of 
the court-room, travelling from one point to another in 
their circuits, on official business, from the violence of 
litigants who have become oftended at the adverse de- 
cisions made by them in the performance of their 
judicial duties, and that such officers are not within 
the provisions of that section. To this the court 
replied that the language of the section is, " an act 
done in pursuance of a hno of the United States " 
— not in pursuance of a statute of the United States ; 
and that the statutes do not present in express terms 
all the law of the United States ; that their incidents 
and implications are as much a part of the law as their 
express provisions ; and that when they prescribe 
duties providing for the accomplishment of certain 
designated objects, or confer authority in general terms, 
they carry with them all the powers essential to effect 
the ends designed. As said by Chief Justice Marshall 
in Osborn v. Bank of the United States (9 Wheaton, 
865-866), " It is not unusual for a legislative act to 
involve consecjuences which are not expressed. An 
officer, for example, is ordered to arrest an individual. 
It is not necessarv, nor is it usual, to say that lie shall 



136 



not be pnnisljed for obeying this order. His security 
is implied in the order itself. It is no unusual thing- 
for an act of Congress to imply, without expressing, 
this very exemption from State control, which is said 
to be so objectionable in this instance. The collectors 
of the revenue, the carriers of the mail, the mint 
establishment, and all those institutions which are 
public in their nature, are examples in point. It has 
never been doubted that all who are employed in them 
are protected while in the line of duty ; and yet this 
protection is not expressed in any act of Congress. 
It is incidental to, and is implied in, the several acts by 
which these institutions are created ; and is secured to 
the individuals employed in them by the judicial power 
alone — that is, the judicial power is the instrument 
employed by the Government in administering this 
security." 

Upon this the Circuit Court observed : 

" If the officers referred to in the preceding passage 
are to be protected while in the line of their duty, 
without any special law or statute requiring such pro- 
tection, the judges of the courts, the principal officers 
in a department of the Government second to no other, 
are also to be protected, and their executive subordi- 
nates — the marshals and their deputies — shielded from 
harm by the national laws while honestly engaged in 
protecting the heads of the courts from assassination." 

Note.— I find the following apt illustrations of this doctrine in a 
journal of the day : 

If* military or naval ofificer of the United States, in the necessary 



137 



To the position that the preservation of tlie peace of 
the State is devolved solely upon the officers of the 
State, and not in any respect upon the marshals of the 
United States, the court replied : This position is al- 

suppressiou of a mutiny or enforcement of obedience, should wound 
or take the life of a subordinate, would it be contended that, if 
arrested for that act by the State authority, he could not be released 
on habeas corpus, because no statute expressly authorized the per- 
formance of the act ? If the commander of a revenue cutter should 
be directed to pursue and retake a vessel which, after seizure, had 
escaped from the custody of the law, and the officer in the perform- 
ance of that duty, and when necessary to overcome resistance, should 
injure or kill a member of the crew of the vessel he was ordered to 
recai^ture, and if for that act he shoiald be arrested and accused of 
crime under the State authority, will any sensible person maintain 
that the provisions of the habeas corpus act could not be invoked for 
his release, notwithstanding that no statute could be shown which 
directly authorized the act for which he was arrested ? If by com- 
mand of the President a company of troops were marched into this 
city to protect the subtreasury from threatened pillage, and in so 
doing life were taken, would not the act of the officer who commanded 
the troops be an act done in pursuance of the laws of the United 
States, and in the lawful exercise of its authority ? Covild he be im- 
prisoned and tried before a State jury on the charge of murder, and 
the courts of the United States be powerless to inquire into the facts 
on habeas corptts, and to discharge him if found to have acted in the 
performance of his duty V Can the authority of the United States for 
the protection of their officers be less than their authority to protect 
their property v 

There appears to be but one rational answer to these questions. 

In all these cases the authority vested in the officer to suppress a 
mutiny, or to overtake and capture an escaped vessel, or to protect 
the subtreasury from threatened pillage, carries with it power to do 
all things necessary to accomplish the object desired, even the killing 
of the offending party. The law conferring the authority thus ex- 
tended to the officer in these cases, is in the sense of the habeas 
corpus act, a law of the United States to do all things necessary for 
the execution of that authority. 



188 



ready answered by what has been said. But it is 
undoubtedly true that it was the imperative duty of the 
State to preserve the public peace and amply protect 
the life of Justice Field, hut it did not do it, and had 
the United States relied upon the State to keep the 
peace as to him — one of the justices of the highest 
court — in relation to matters concerning the performance 
of his official duties, they would have leaned upon a 
broken reed. The result of the efforts to obtain an 
officer from the State to assist in preserving the peace 
and protecting him at Lathrop was anything but suc- 
cessful. The officer of the State at Lathrop, instead of 
arresting the conspirator of the contemplated murderer, 
the wife of the deceased, arrested the officer of the 
United States, assigned by the Government to the spe- 
cial duty of protecting the justice against the very par- 
ties, while in the actual prosecution of duties assigned 
to him, without warrant, thereby leaving his charge 
without the protection provided by the Government he 
was serving, at a time when such protection seemed 
most needed. And, besides, the use of the State police 
force beyond the limits of a county for the protection 
of Justice Field would have been impracticable, as the 
powers of the sheriff would have ended at its borders, 
and of other township and city peace officers at the 
boundaries of their respective townships and cities. 
Only a United States marshal or his deputy could have 



139 



exercised these olfteial t'mu'tions tlirou<ji;li()nt tliii judi- 
cial district, wliicli embraces many counties. The only 
remedy suggested on the part of the State was to arrest 
the deceased and hold him to bail to keep the peace 
under section 700 of the Penal Code, the highest limit 
of the amount of bail being $5,000. But although the 
threats are conceded to have been publicly known in 
the State, no State officer took any means to provide 
this Himsy safeguard. And the execution of a bond in 
this amount to keep the peace would have had no effect 
in deterring the intended assailants from the commis- 
sion of the oifense contemplated, when the penalties of 
the law would not deter them. 

As to the delil)eration and wisdom of Neagle's con- 
duct under the circumstances, the court, after stating 
the established facts, concludes as follows : 

" When the deceased left his seat, some thirty feet 
distant, walked stealthily down the passage in the rear 
of Justice Field and dealt the unsuspecting jurist two 
preliminary blows, doubtless by way of reminding him 
that the time for vengeance had at last come, Justice 
Field was already at the traditional ' wall ' of the law. 
He was sitting quietly at a table, back to the assailant, 
eating his breakfast, the side opposite being occupied 
by other passengers, some of whom were women, simi- 
larly engaged. When, in a dazed condition, he awoke 
to the reality of the situation and saw the stalwart 
form of the deceased with arm drawn back for a final 
mortal blow, there was no time to get under or over 
the table, had the law, under any circumstances, re- 



140 



quired such an act for his justification. Neagle coukl 
not seek a 'wall' to justify his acts without abandon- 
ing his charge to certain death. When, therefore, he 
sprang to his feet and cried, ' Stop ! I am an officer,' 
and saw the powerful arm of the deceased drawn back 
for the final deadly stroke instantly change its direction 
to his left breast, apparently seeking his favorite 
weapon, the knife, and at the same time heard the 
half-suppressed, disappointed growl of recognition of 
the man who, with the aid of lialf a dozen others, had 
finally succeeded in disarming him of his knife at the 
court-room a year before, the supreme moment had 
come, or, at least, with abundant reason he thought so, 
and fired the fatal shot. The testimony all concurs in 
showing this to be the state of facts, and the almost 
universal consensus of public opinion of the United 
States seems to justify the act. On that occasion a 
second, or two seconds, signified, at least, two valuable 
lives, and a reasonable degree of prudence would jus- 
tify a shot one or two seconds too soon rather than a 
fraction of a second too late. Upon our minds the 
evidence leaves no doubt whatever that the homicide 
was fully justified by the circumstances. Neagle on 
the scene of action, facing the party making a murder- 
ous assault, knowing by personal experience his physi- 
cal powers and his desperate character, and by general 
reputation his life-long habit of carrying arms, his 
readiness to use them, and his angry, murderous threats, 
and seeing his demoniac looks, his stealthy assault 
upon Justice Field from behind, and, remembering the 
sacred trust committed to his charge — Neagle, in these 
trying circumstances, was the party to determine when 
the supreme moment for action had come, and if he, 
honestly, acted with reasonable judgment and discre- 
tion, the law justifies him, even if he erred. But who 
will have the courage to stand up in the presence of 
the facts developed by the testimony in this case, and 



141 

say that he tired tlie smallest fraction of a second too 
soon ? 

" In our judgment he acted, under the trying circum- 
stances surrounding him, in good faith and with con- 
summate courage, judgment, and discretion. The 
homicide was, in our opinion, clearly justifiable in law, 
and in the forum of sound, practical common sense 
commendable. This being so, and the act having been 
' done '" "■ * in pursuance of a law of the United 
States,' as we have already seen, it cannot be an of- 
fense against, and he is not amenable to, the laws of 
the State." 

The petitioner was accordingly discharged from ar- 
rest. 



CHAPTER XIX. 

EXPRESSIONS OF PUBLIC OPINION. 

This case and all the attendant circumstances — the 
attempted assassination of Justice Field by his former 
associate, Terry ; the defeat of this murderous attempt 
by Deputy Marshal Neagle ; the arrest of Justice 
Field and the deputy marshal upon the charge of 
murder, and their discharge — created very great 
interest throughout the United States. They were the 
subject of articles in all the leading journals of the 
country ; and numerous telegrams and letters of con- 
gratulation were sent to the Justice on his escape from 
the murderous attempt. Satisfaction was very generally 
expressed at the fate which Terry met, and much 
praise was given to the courageous conduct of Neagle 
and at the bearing of Justice Field under the trying 
circumstances. 

A few of the letters received by him are here given, 
and citations are made from some of the periodicals, 
which indicated the general sentiment of the country. 

Letter from Hon. T. F. Bayard, ex-Secretary of State : 

Wilmington, Delaware, August 18, 1889. 
My Dear Brother Field : 

I was absent from home when I first saw in the 
newspapers an account of the infamous assault of the 



143 



Terrys — husband and wife — upon .you, and the prompt 
and courageous action of Deputy Marshal Nea^le that 
happily frustrated the iniquitous plot against 3'our 
life. 

Accept, my dear friend, my fervent congratulations 
on your escape from the designs of this madman and of 
the shameless creature who was his wife and accom- 
plice. 

For the sake of our country and its reputation in the 
eyes of Christendom, I am indeed grateful that this 
vile stab at its judicial power, as vested in your per- 
sonality, miscarried, and that by good fortune the 
insane malice of a disappointed suitor should have been 
thwarted. 

Yoiir dignified courage in this tragical episode is 
most impressive, and, while it endears you the more to 
those who love you, will wring even from your foes a 
tribute of respect and admiration. 

Passing over the arguments that may be wrought out 
of the verbiage of our dual constitution of government, 
the robust and essential principle must be recognized 
and proclaimed — that the inherent ponders of every gov- 
ernment which are sufficient to authorize and enforce 
the judgments of its courts are equally and at all 
times and in all places sufficient to protect the individ- 
ual judge who fearlessly and conscientiously, in the 
discharge of his duty, pronounces those judgments. 

The case, my dear friend, is not yours alone ; it is 
equally mine and that of every other American. A princi- 
ple so vital to society, to the body politic, was never more 
dangerously and wickedly assailed than by the assault 
of Terry and his wife upon you for your just and hon- 
orable performance of your duty as a magistrate. 

I can well coinprehend the shock to which this oc- 
currence has subjected you, and T wish I could be by 
your side to give you assurance orally (if any were 
needed) of that absolute sympathy and support to 



144 



which you are so fully entitled. But these lines will 
perhaps suffice to make you feel the affectionate and 
steadfast regard I entertain for you, and which this 
terrible event has but increased. 

I cannot forbear an expression of the hope that the 
arguments of jurisdictional and other points which 
must attend the litigation and settlement of this tragedy 
may not be abated or warped to meet any temporary 
local or partisan demand. 

The voice of Justice can never speak in clearer or 
more divine accents than when heard in vindication and 
honor of her own faithful ministers. 
Ever, my dear Judge Field, 

Sincerely yours, 

T. F. BAYAED. 
The Hon. Stephen J. Field, 

San Francisco, Cal. 

Letter from Hon. E. J. Phelps, former Minister to 
England : 

Burlington, Vermont, Axgnsi 17, 1889. 
My Dear Judge Field : 

Pray let me congratulate you most heartily on the 
Terry transaction. Nothing that has ever occurred in 
the administration of justice has given me more satisfac- 
tion than this prompt, righteous, and effectual vindica- 
tion through an officer of the court of the sanctity of 
the judiciary when in the discharge of its duty. What 
your marshal did was exactly the right thing, at the 
right time, and in the right way. I shall be most 
happy to join in a suitable testimonial to him, if our 
profession will, as they ought, concur in presenting it. 

Your own coolness and carriage in confronting this 
danger in the discharge of your duty must be univer- 
sally admired, and will shed an additional lustre on a 



145 



judicial career which was distinguished enoui>h without 
'it. 

You have escaped a great peril — acquired a fresh 
distinction — and vindicated most properly the dignity of 
your high station. 

I am glad to perceive that this is the general opinion. 
Anticipating the pleasure of seeing you in Washing- 
ton next term, 

I am always, dear sir. 

Most sincerely yours, 

E. J. PHELPS. 

Letter from Hon. George F. Hoar, Senator from 

Massachusetts : 

Worcester, A ugust 16, 1889. 
My Dear Judge Field : 

I think I ought to tell you, at this time, how high 
you stand in the confidence and reverence of all good 
men here, how deeply they were shocked by this out- 
rage attempted not so much on you as on the judicial 
office itself, and how entirely the prompt action of the 
officer is approved. I hope you may long be spared to 
the public service. 

I am faithfully yours, 

GEO. F. HOAE. 

Letter from Hon. J. Proctor Knott, for many 3'ears a 
Member of Congress from Kentucky and Chairman of 
the Judiciary Committee of the House of Representa- 
tives, and afterwards Governor of Kentucky : 

Lebanon, Kentucky, Septemher 5, 1889. 
My Dear Judge : * - •5«- 

I have had it in mind to write you from the moment 
1 first heard of your fortunate escape from the fiendish 



146 



assassination with which you were so imminently 
threatened, but I have, since the latter part of May, 
been suffering from a most distressing affection of the 
eyes which has rendered it extremely difficult, and fre- 
quently, for days together, quite impossible to do so. 
Even now, though much improved, I write in great pain, 
but I cannot get my consent to delay it longer on any 
account. You are to be congratulated, my dear friend, 
and you know that no one could possibly do so with more 
genuine, heartfelt sincerity than I do myself. * " * 
I had been troubled, ever since I saw you had gone 
to your circuit, with apprehensions that you woiild be 
assassinated, or at least subjected to some gross out- 
rage, and cannot express my admiration of the serene 
heroism Avith which you went to your post of duty, de- 
termined not to debase the dignity of your exalted po- 
sition by wearing arms for your defense, notwithstand- 
ing you Avere fully conscious of the danger which 
menaced you. It didn't surprise me, however, for I 
knew the stuff you were made of had been tested be- 
fore. But I iv((s surprised and disgusted, too, that yov 
should have been charged or even suspected of any- 
thing wrong in the matter. The magistrate who issued 
the warrant for your arrest may possibly have thought 
it his duty to do so, Avithout looking beyond the " rail- 
ing accusation " of a baffled and infuriated murderess, 
which all the Avorld instinctively knew to be false, yet I 
suppose there is not an intelligent man, woman, or 
child on the continent Avho does not consider it an in- 
famous and unmitigated outrage, or who is not thor- 
oughly satisfied that the brave fellow avIio defended 3'ou 
so opportunely was legally and morally justitiable in 
Avhat he did. I have not been in a condition to t/iinJi' 
very coherently, much less to read anything in relation 
to the question of jurisdiction raised by the State au- 
thorities in the habeas corpus issued in your behalf by 
the U. S. Circuit Court, and it may be that, from the 



147 



mere newspaper's reports that have reached nfe, I have 
been unable to fnlly apprehend tlie obje(;tions which 
are made to the courts hearing all the facts on the trial 
of the writ ; but it occurs to me as a plain principle of 
common sense that the federal government should not 
only have the power, but that it is necessary to its own 
preservation, to protect its officers from being wantonly 
or maliciously interfered with, hindered or obstructed 
in the lawful exercises of their official duties, not arbi- 
trarily of course, but through its regularly constituted 
agencies, and according to the established principles of 
law ; and where such obstruction consists in the forci- 
ble restraint of the officer's liberty, I see no reason why 
the federal judiciary should not inquire into it on 
haheas corpus, Avheu it is alleged to be not only ille- 
gal but contrived for the very purpose of hindering the 
officer in the discharge of his official duties, and im- 
pairing the efficiency of the public service. It is true 
that in such an investigation a real or apparent conflict 
between State and federal authority may be presented, 
which a due regard to the respective rights of the two 
governments would require to be considered with the 
utmost caution, such caution, at least, as it is fair to 
presume an intelligent court would always be careful 
to exercise, in view of the absolute importance of 
maintaining as far as possible the strictest harmony 
between the two jurisdictions. Yet those rights 
are determined and by fixed legal principles, which 
it would be impossible for a court to apply in any 
case without a competent knowledge of the facts 
upon which their application in the particular case 
might depend. For instance, if your court should 
issue a writ of habeas corpus for the relief of a 
federal officer upon the averments in his petition that 
he was forcibly and illegally restrained of his liberty 
for the purpose of preventing him from performing 
his official duties, and it should appear in the return 



148 



to the writ that the person detaining the prisoner was 
a ministerial officer of the State government authorized 
by its laws to execute its process, and that he held the 
petitioner in custody by virtue of a warrant of arrest 
in due form, issued by a competent magistrate, to 
answer for an offense against the State laws, I presume 
the court, in the absence of any further showing, would 
instantly remand the petitioner to the custody of the 
State authorities without regard to his official position 
or the nature of his public duties. But, on the other 
hand, suppose there should be a traverse of the return, 
averring that the warrant of the arrest, though appar- 
ently regular in all respects, was in truth but a fraudu- 
lent contrivance designed and employed for the sole 
purpose of hindering and obstructing the petitioner in 
the performance of his duties as an officer of the gov- 
ernment of the United States ; that the magistrate who 
issued it, knowingly and maliciousl}^ abused his 
authority for that purpose in pursuance of a conspiracy 
between himself and others, and not in good faith, and 
upon probable cause to bring the prisoner to justice for 
a crime against the State. How then ? Here is an 
apparent conflict — not a real one — between the rights 
of the government of the United States and the gov- 
ernment of the State. The one has a right to the serv- 
ice of its officer, and the right to prevent his being 
unlawfully interfered with or obstructed in the per- 
formance of his official duties ; the other has the right 
to administer its laws for the punishment of crime 
through its own tribunals ; but it must be observed that 
the former has no right to shield one of its officers from 
a valid prosecution for a violation of the laws of the 
latter not in conflict with the Constitution and laws of 
the United States, nor can it be claimed that the latter 
has any right to sufler its laws to be prostituted, and its 
authority fraudulently abused, in aid of a conspiracy 
to defeat or obstruct the functions of the former. 
Such an abuse of authority is not, and cannot be in 



140 



any sense, a hona jide administration of State laws, but 
is itself a crime against them. What, then, would your 
court do ? You would probably say : If it is true that 
this man is held without probable cause under a fraud- 
ulent warrant, issued in pursuance of a conspiracy to 
which the magistrate who issued it was a party, to give 
legal color to a malicious interference with his func- 
tions as a federal official, he is the victim of a double 
crime — a crime against the United States and a crime 
against the State — and it is not only our duty to vin- 
dicate his right to the free exercise of his official duties, 
but the right of the federal government to his services, and 
its right to protect him in the legal performance of the 
same. But if, on the other hand, he has raised a mere 
" false clamor " — if he is held in good faith upon a 
valid Avarrant to answer for a crime committed against 
the State, it is equalh' as obligatory upon us to viphold 
its authority, and maintain its right to vindicate its own 
laws through its own machinery. To determine be- 
tween these two hypotheses we must know the facts. 
* * * The same simple reasoning, it occurs to me, 
applies to Mr. Neagle's case. Whether he acted in the 
line of his dut}' under the laws of the United States, 
as an officer of that government, is clearly a question 
within the jurisdiction of the federal judiciary. If he 
did., he cannot be held responsible to the State 
authority ; if he did not, he should answer, if required, 
before its tribunals of justice. I presume no court of 
ordinary intelligence. State or federal, would question 
these obvious principles ; but how any court could 
determine whether he did or did not act in the line of 
his official duty under the laws of his government 
without a judicial inquiry into \\\q. facts connected with 
the transaction I am unable to imagine. * * * 
I am, as always. 

Your faithful friend, 

J. PROCTOR KNOTT. 
Hon. S. J. Field, 

Associate Justice Supreme Court U. S. 



150 



Letter from Hon. William D. Shipman, formerly U. 
S. District Judge for the district of Connecticut : 

New York, OctoUr 20, 1889. 
Dear Judge : 

-X- * * * * * 

1 have attentivel}^ read Judge Sawyer's opinion in 
the Neagle habeas corpus case, and I agree with his 
main conclusions. It seems to me that the whole ques- 
tion of jurisdiction turns on the fact whether you were, 
at the time the assault was made on you, engaged in 
the performance of your official duty. 

You had been to Los Angeles to hold court there and 
had finished that business. In going there you were 
performing an official duty as much as you were when 
you had held court there. It was then your official 
duty to go from Los Angeles to San Francisco and hold 
court there. You could not hold court at the latter 
place without going, and you were engaged in the line 
of your official duty in performing that journey for that 
purpose, as you were in holding the court after you got 
there. The idea that a judge is not performing official 
duty when he goes from court-house to court-house or 
from court-room to court-room in his own circuit seems 
to me to be absurd. The distance from one court- 
house or court-room to another is not material, and 
does not change or modify the act or duty of the 
judge. 

Now, Neagle was an officer of your court, charged 
with the duty of protecting your person while you were 
engaged in the performance of your official duty. ITis 
duty was to see to it that you were not unlawfully pre- 
vented from performing your official duty — not hindered 
or obstructed therein. For the State authorities to 
indict him for repelling the assault on you in the only 
way which he could do so effectually seems to me to be 



151 



as unwarranted by law as it would be for them to indict 
him for an assault on Terry when he assisted in dis- 
arming the latter in the court-room last year. 

When, therefore, it was conceded on the argument 
that if the affair at Lathrop had token place in the 
court-room during the sitting of the court, the jurisdic- 
tion of the Circuit Court would be unquestionable, it is 
difficult for me to see why the wdiole question of federal 
jurisdiction was not embraced in that concession. 
Assassinating a judge on the bench would no more ob- 
struct and defeat public justice than assassinating him 
on his way to the bench. In each case he is proceeding 
in the line of official duty imposed on. him by laiv and 
his official oath. The law requires him to go to court 
wherever the latter is held, and he is as much engaged 
in performing the duty thus imposed on him while he 
is proceeding to the place of his judicial labors as he 
is in performing the latter after he gets there. 

It would, therefore, seem to go without saying that 
any acts done in defense and protection of the judge in 
the performance of the duties of his office must pertain 
to the exclusive jurisdiction of the court of which he 
forms a part. 

The fact that the assault on you was avowedly made 
in revenge for your judicial action in a case heard by 
you gives a darker tinge to the deed, but, perhaps, does 
not change the legal character of the assault itself. 

That Neagle did his whole duty, and in no way ex- 
ceeded it, is too plain for argument. 
Yours faithfully, 

W. D. SHIPMAN. 
Mr. Justice Field. 



Letter from James C. Welling, president of Columbian 
Universit}^, Washington : 



152 

Hartford, August 15, 1889. 
My Dear Judge: 

It is a relief to know that Justice, as well as the 
honored justice of our Supreme Judiciary, has been 
avenged by the pistol-shot of Neagle. The life of 
Terry has long since been forfeited to law, to decency, 
and to morals. He has already exceeded the limit 
assigned by holy scripture to men of his ilk. " The 
bloody-minded man shall not live out half his days." 
The mode of his death was in keeping with his life. 
Men who break all the laws of nature should not ex- 
pect to die by the laws of nature. 

In all this episode you have simply worn the judicial 
ermine without spot or stain. You defeated a bold, 
bad man in his machinations, and the enmity you 
thereby incurred was a crown of honor. I am glad 
that you are to be no longer harassed by tlie menace 
of this man's violence, for such a menace is specially 
trying to a minister of the law. We all know that 
Judge Field the man would not flinch from a thousand 
Terrys, but Judge Field the Justice could hardly take 
in his own hands the protection of his person, where 
the threatened outrage sprang entirely from his official 
acts. 

I wish, therefore, to congratulate you on your escape 
alike from the violence of Terry and from the necessity 
of killing him with your own hands. It was meet that 
you should have been defended by an executive officer 
of the court assailed in your person. For doubtless 
Terry, and the hag who was on the hunt with him, were 
minded to murder you. 

Convey my cordial felicitations to Mrs. Field, and 
believe me ever, my dear Mr. Justice, 

Your faithful friend, 

JAMES C. WELLING. 
Mr. Justice Field. 



153 



Letter from Eight Rev. B. Wistar Morris, E]-is('opal 
Bishop of Oregon : 

BiSHorcROFT, Portland, Oregon, 

Atigust 22, 1889. 
My Dear Judge Field : 

I hope a word of congratulation from your Oregon 
friends for your escape in the recent tragedy will not 
be considered an intrusion. Of course we have all 
been deeply interested in its history, and proud that 
you were found as you were, without the defenses of a 
bully. 

I will not trespass further on your time than to sub- 
scribe myself, 

Very truly your friend, 

B. WISTAR MORRIS. 
Mr. Justice Field. 

A copy of the following card was enclosed in this 
letter : 

AN UNAEMED JUSTICE. 

Portland Oregon, August 19. 
"To the Editor' of the Oregonian : 

There is one circumstance in the history of the Field 
and Terry tragedy that seems to me is worthy of more 
emphatic comment than it has yet received. I mean 
the fact that Judge Field had about his person no 
weapon of defense whatever, though he knew that this 
miserable villain was dogging his steps for the purpose 
of assaulting him, perhaps of taking his life. His 
brother, Mr. Cyrus W. Field, says : 

" It was common talk in the East here, among my 
brother's friends, that Terry's threats to do him bodily 
harm were made with the full intent to follow them up. 
Terr}' threatened openly to shoot the Justice, and we, 



154 



who kneAV liim, were convinced be would certainly do 
it if he ever got a chance. 

" I endeavored to dissuade my brother from making 
the trip West this year, but to no purpose, and he said, 
' I have a duty to perform there, and this sort of tiling 
can't frighten me away. I know Terry will do me harm 
if he gets a chance, and as I shall be in California some 
time, he will have chances enough. Let him take 
them.' 

" When urged to arm himself he made the same re- 
ply. He said that when it came to such a pass in tliis 
country that judges find it necessary to go armed, it 
will be time to close the courts themselves." 

This was a manly and noble reply and must recall to 
many minds that familiar sentiment : " He is thrice 
armed who has his quarrel just." With the daily and 
hourly knowledge that this assassin was ever upon his 
track, this brave judge goes about his duty and scorns 
to take to himself the defenses of a bully or a brigand ; 
and in doing so, how immeasurably has he placed him- 
self above the vile creature that sought his life, and all 
others who resort to deeds of violence. " They that 
take the sword shall perish with the sword," is a say- 
ing of wide application, and had it been so in this case ; 
had this brave and self-possessed man been moved f I'om • 
his high purpose by the importunity of friends, and 
when slain by his enemy, had been found armed in like 
manner with the murderer himself, what a stain would it 
have been upon his name and honor ? And how would 
our whole country have been disgraced in the eyes of 
the civilized world, that her highest ministers of justice 
must be armed as highwaymen as they go about their 
daily duties ! 

Well said this undaunted servant of the state : 
" Then will it be time to close the courts themselves." 
May we not hope, Mr. Editor, that this example of one 
occupying this high place in our country moy have 



155 



some influence in staying the spirit and deeds of vio- 
lence now so rife, and that they who are so ready to re- 
sort to the ritle and revolver may learn to regard them 
only as the instruments of the coAvard or the scoun- 
drel ? 

B. WISTAE M0RKI8. 

The citations given below from different journals, 
published at the time, indicated the general opinion of 
the country. With rare exce})tions it apjiroved of the 
action of the Government, the conduct of Neagle. and 
the bearing of Justice Field. 

The Alta Cdlifornia, a leading paper in California, 
had, on August 15, 1889, the day following the tragedy, 
the following article : 

THE TERRY TRAGEDY. 

The killing of David S. Terry by the United States 
Marshal David Neagle yesterday was an unfortunate 
affair, regretted, we believe, b}' no one more than by 
Justice Field, in whose defense the fatal shot was fired. 
There seems, however, to be an almost undivided senti- 
ment that the killing was justifiable. Every circum- 
stance attending the tragedy points to the irresistible 
conclusion that there was a premeditated determination 
on the part of Terry and his wife to provoke Justice 
Field to an encounter, in which Terry might either find 
an excuse for killing the man against whom he had 
threatened vengeance, or in which his wife might use 
the pistol which she always carries, in the pretended 
defense of her husband. For some time past it has 
been feared that a meeting between Terry and Justice 
Field would result in bloodshed. There is now indis- 



156 



piitable proof that Terry had made repeated threats 
that he would assault Justice Fiekl the first time he met 
him off the bench, and that if the Judge resisted he 
would kill him. Viewed in the light of these threats, 
Terry's presence on the same train with Justice Field 
will hardly be regarded as accidental, and his actions 
in the breakfast-room at Lathrop were directly in line 
with the intentions he had previously expressed. Nea- 
gle's prompt and deadly use of his revolver is to be 
judged with due reference to the character and known 
disposition of the man with whom he had to deal and 
to his previous actions and threats. He was attending 
Justice Field, against the will of the latter and in spite 
of his protest, in obedience to an order from the Attor- 
ney-General of the United States to Marshal Franks to 
detail a deputy to protect the person of Justice Field 
from Terry's threatened violence. A slap in the face 
may not, under ordinary circumstances, be sufficient 
provocation to justify the taking of human life ; but it 
must be remembered that there were no ordinary cir- 
cumstances and that Terry was no ordinary- man. Terry 
was a noted pistol-shot ; it Avas known that he invaria- 
bly carried arms and that he boasted of his ability to 
use them. If on this occasion he was unarmed, as Mrs. 
Terry asserts,* Neagle had no means of knowing that 
fact ; on the contrary, to his mind every presumption 
was in favor of the belief that he carried both pistol and 
knife, in accordance with his usual habit. As a peace 
officer, even apart from the special duty which had been 
assigned to him, he was justified in taking the means 
necessary to prevent Terry from continuing his assault ; 
but the means necessary in the case of one man may be 
wholly inadequate with a man bearing the reputation of 
David S. Terry, a man who only a few months previ- 
ously had drawn a knife while resisting the lawful au- 



* It has been conclusively established since that he was armed with 
his usual bowie-knife at the time. 



157 



tliority of aiiotber United States officer. It is true that 
if Terry was unarmed, the deputy marshal might have 
arrested him without taking his life or seriously endan- 
gering his own ; but Terry was a man of gigantic stature, 
and. though aged, in possession of a giant's strength ; 
and there is no one who was acquainted with him, or 
has had opportunity to learn his past history, who does 
not know that he was a desperate man, Avilling to take 
desperate chances and to resort to desperate means 
when giving way to his impulses of passion, and that 
any person who should at such a moment attempt to 
stay his hand w'ould do so at the risk of his life. 
Whether he had a pistol with him at that moment or 
not, there was every reason to believe that he was armed, 
and that the blow with his hand was intended only as 
the precursor to a more deadly blow with a weapon. 
At such moments little time is allowed for reflection. 
The officer of the law was called upon to act and to act 
promptly. He did so, and the life of David S. Terry 
was the forfeit. He fell, a victim to his own ungovern- 
able passions, urged on to his fate by the woman who 
was at once his wife and his client, and perhaps further 
incited by sensational newspaper articles which stirred 
up the memory of his resentment for fancied wrongs, 
and taunted him with the humiliation of threats unful- 
tilled. 

The close of Judge Terry's life ends a career and an 
era. He had the misfortune to carry into a ripened 
state of society the conditions which are tolerable only 
where social order is not fully established. Restless 
under authority, and putting violence above law, he 
lived by the sword and has perished by it. 

That example which refused submission to judicial 
finalities was becoming ofi'ensive to California, but the 
incubus of physical fear was upon many who realized 
that the survival of frontier ways into non-frontier 
period was a damage to the State. But, be this as it 



158 



may, the stubborn spirit that defied the hiw has fallen 
by the law. 

When Justice Field showed the highest judicial cour- 
age in the opening incidents of the tragedy that has 
now closed, the manhood of California received a dis- 
tinct impetus. When the Justice, with threats made 
against his life, returned to the State unarmed, and re- 
sentful of protection against assault, declaring that 
when judges must arm to defend themselves from as- 
sault offered in reprisal of their judicial actions society 
must be considered dissolved, he was rendering to our 
institutions the final and highest possible service. The 
event that followed, the killing of Terry in the act of 
striking him the second time from behind, while he sat 
at table in a crowded public dining-room, was the act 
of the law. The Federal Department of Justice, by its 
chief, the Attorney-General of the United States, had 
ordered its officer, the United States marshal for the 
northern district of California, to take such means and 
such measures as might be necessary to protect the 
persons of the judges against assault by Judge Terry, 
in carrying out the threats that he had made. This 
order was from the executive arm of the Government, 
and it was carried out to the letter. Judge Terry took 
the law into his own hands and fell. Nothing can add 
to the lesson his fate teaches. It is established now 
that in California no man is above the law ; that no 
man can affect the even poise of justice by fear. Con- 
fiding in his own strength as superior to tlie law, David 
S. Terry fell wretchedly. 

No more need be said. New California inscribes 
upon her shield, " Obedience to the law the first con- 
dition of good citizenship," and the past is closed. 

The Record- Union of Sacramento, one of the leading 
papers of California, on August 15, 1889, the day fol- 



159 



lowing the tragedy, liad the following article under the 

head — 

KILLING OF JUDGE TERRY. 

In the news columns of the Record- Union, will be 
found all the essential details of the circumstances of 
the killing of D. S. Terry. It will be evident to the 
reader that they readily sap the whole case, and that 
there is no substantial dispute possible concerning the 
facts. These truths we assert, without fear of success- 
ful contradiction, establish the justifiableuess of the 
act of the United States marshal who fired upon and 
killed Terry. We think there will be no dispute among 
sensible men that a federal circuit judge or a justice of 
the supreme bench, passing from one portion of the 
circuit to another in which either is reqiiired to open a 
court and hear causes, and. for the purpose of fully 
discharging his official duties, is while en route in the 
discharge of an official function, and constructively his 
court is open to the extent that an assault upon him, 
because of matters pending in his court, or because of 
judgments he has rendered or is to render, is an assault 
upon the court, and his bailifl' or marshal detailed to 
attend the court or to aid in preserving the order and 
dignity of the court has the same right to |)rotect him 
from assault then that he would have, had the judge 
actually reached his court-room. 

But further than this, we hold that in view of the 
undeniable fact that the Justice had knowledge of the 
fact that the Terrys, man and wife, had sworn to pun- 
ish him ; that they had indulged in threats against him 
of the most pronounced character ; that the}' had 
boarded a train on which it is probable they knew he 
had taken passage from one part of his circuit to 
another in his capacity as a magistrate ; in view of the 
fact that Terry sought the first opportunity to approach 
and strike liini, and that, too, wlien seated ; and in view 



160 



of the notorious fact that Terry always went armed — 
the man who shot Terry would have been justified in 
doing so had he not even been commissioned as an 
officer of the court. He warned the assailant to desist, 
and knowing his custom to go armed, and that he had 
threatened the Justice, and Terry refusing to restrain 
his blows, it was Neagle's duty to save life, to strike 
down the assailant in the most eftectual manner. Men 
who, having the ability to prevent murder, stand by and 
see it committed, may well be held to accountability 
for criminal negligence. 

But in this case it is clear that murder was intended 
on the part of the Terrys. One of them ran for her 
pistol and brought it, and would have reached the 
other's side with it in time, had she not been detained 
by strong men at the door. Neagle saw this woman 
depart, and coupling it with the advance of Terry, 
knew, as a matter of course, what it meant. He had 
been deputed by the chief law officer of the Govern- 
ment — in view of previous assaults by the Terrys and 
their threats and display of weapons in court — to 
stand guard over the judges and protect them. He 
acted, therefore, precisely as it was proper he should 
do. Had he been less prompt and vigorous, all the 
world knows that not he but Terry would to-day be in 
custody, and not Terry but the venerable justice of the 
Supreme Court of the United States would to-day be 
in the coffin. 

These remarks have grown too extended for any 
elaboration of the moral of the tragedy that culmi- 
nated in the killing of David S. Terry yesterday. But 
we cannot allow the subject to be even temporarily 
dismissed without calling the thought of the reader to 
contemplation of the essential truth that society is 
bound to protect the judges of the courts of the "land 
from violence and the threats of violence ; otherwise 
the decisions of our courts must conform to the vio- 



161 



lonco t]ireatened,an(l there will be an end of our judicial 
system, the third and most valuable factor in the sciieme 
of representative government. Society cannot, there- 
fore, punish, but must applaud the man who defends 
the courts of the people and the judges of those courts 
from such violence and threats of violence. For it 
must be apparent to even the dullest intellect that all 
such violence is an outrage upon the judicial conscience, 
and therefore involves and puts in peril the liberties of 
the people. 

The New Orleans Times- Democrat, in one of its is- 
sues at this period, used the following language : 

The judge in America who keeps his official ermine 
spotless, who faithfully attends to the heavy and re- 
sponsible duties of his station, deserves that the peo- 
ple should guard the sanctity of his person with a 
strength stronger than armor of steel and readier than 
the stroke of lance or sword. Though the judges be 
called to pass on tens of thousands of cases, to sentence 
to imprisonment or to death thousands of criminals, 
they should be held by the people safe from the hate 
and vengeance of those criminals as if they were guarded 
by an invulnerable shield. 

If Judge Field, of the Supreme Court, one of the 
nine highest judges under our republican government, 
in travelling recently over his circuit in California, had 
been left to the mercy of the violent man who had re- 
peatedly threatened his life, who had proved himself 
ready with the deadly knife or revolver, it would have 
been a disgrace to American civilization ; it would have 
been a stigma and stain upon American manhood ; it 
would have shown that the spirit of American liberty, 
which exalts and pays reverence to our judiciary, had 
been replaced by a public apathy that marked the be- 
ginning of the decline of patriotism. 



162 



Judge Field recognized this when, in being advised 
to arm himself in case his life was endangered, he 
uttered the noble words: "No, sir; I do not and 
will not carry arms, for when it is known that the 
judges of the court are compelled to arm themselves 
against assaults offered in consequence of their judicial 
action it will be time to dissolve the coiirts, consider 
the government a failure, and let society lapse into bar- 
barism." That ringing sentence has gone to the re- 
motest corner of tlie land, and everywhere it has gone 
it should fire the American heart with a proud resolve 
to protect forever the sanctity of our judiciary. 

Had not Neagle protected the person of Judge Field 
from the assault of a dangerous and violent ruffian, ap- 
parently intent on murder, by his prompt and decisive 
action, shooting the assailant down to his death, it is 
certain that other brave men would have rushed quickly 
to his rescue ; but Neagle's marvelous quickness fore- 
stalled the need of any other's action. The person of 
one of the very highest American judges was preserved 
unharmed, while death palsied the murderous hand that 
had sworn to take his life. 

That act of Neagle's was no crime. It was a deed 
that any and every American should feel proud of hav- 
ing done. It was an act that should be applauded over 
the length and breadth of this great land. It should 
not have consigned him for one minute to prison walls. 
It should have lifted him high in the esteem of all the 
American people. When criminals turn executioners, 
and judges are the victims, we might as well close our 
courts and hoist the red flag of anarchy over their silent 
halls and darkened chambers. 

The New York Ilei-dld, in its issue of August 19, 
1889, said : 

The sensation of the past week is a lesson in republi- 
canism and a eulogium on the majesty of the law. 



163 



It was uot A personal coutroversy between Stephen 
J. Field and David S. Terry. It was a coutlict between 
law and lawlessness — between a judicial officer who 
represented the law and a man who sought to take it 
into his own hands. One embodied the peaceful power 
of the nation, the will of the people ; the other defied 
that power and appealed to the dagger. 

Justice Field's whole course shows a conception of 
judicial duty that lends grandeur to a republican 
judiciar\'. It is an inspiring example to the citizens 
and especially to the judges of the country. He was 
reminded of the danger of returning to California while 
Judge Terry and his wife were at large. His firm 
answer was that it was his duty to go and he would go. 
He was then advised to arm himself for self-defense. 
His repl}' embodies a nobility that should make it his- 
toric : " When it comes to such a pass in this country 
that judges of the courts find it necessary to go armed 
it will be time to close the courts themselves." 

This sentiment was not born of any insensibility to 
danger ; Jiistice Field fully realized the peril himself. 
But above all feeling of personal concern arose a lofty 
sense of the duty imposed upon a justice of the nation's 
highest court. The officer is a representative of the 
law — a minister of peace. He should show by his 
example that the law is supreme ; that all must bow to 
its authority ; that all lawlessness must yield to it. 
When judges who represent the law resort to violence 
even in self-defense, the pistol instead of the court 
becomes the arbiter of controversies, and the authority 
of the government gives way to the power of the mob. 

Rather than set a precedent that might tend to such 
a result, that would shake popular confidence in the 
judiciary, that would lend an}' encouragement to vio- 
lence, a judge, as Justice Field evidently felt, may well 
risk his own life for the welfare of the commonwealth. 
He did not even favor the proposition that a marshal 
be detailed to guard him. 



164 



The course of tlie venerable Justice is an example to 
all who would have the law respected. It is also a 
lesson to all who would take the law into their own 
hands. 

Not less exemplary was his recognition of the 
supremacy of the law when the sheriff of San Joaquin 
appeared before him with a warrant of arrest on the 
grave charge of murder. The warrant was an outrage, 
but it was the duty of the officer to serve it, even on a 
justice of the United States Supreme Court. When 
the sheriff hesitated and began to apologize before dis- 
charging his painful duty. Justice Field promptly spoke 
out : " Officer, proceed with your dut3^ I am ready, 
and an officer should always do his duty." These are 
traits of judicial heroism worthy the admiration of the 
world. 

The Albany Evening Thiion, in one of its issues at 
this time, has the following: 

JUSTICE FIELD RELIES UPON THE LAW FOE HIS DEFENSE. 

The courage of Justice Stephen J. Field in declining 
to carry weapons and declaring that it is time to close 
the courts when judges have to arm themselves, and at 
the same time proceeding to do his duty on the bench 
when his life was threatened by a desperate man, is 
without parallel in the history of our judiciary. We 
do not mean by this that he is the only judge on the 
bench that would be as brave as he was under the cir- 
cumstances, but every phase of the affair points to the 
heroism of the man. He upheld the majesty of the 
law in a fearless manner and at the peril of his life. 
He would not permit the judiciary to be lowered by any 
fear of the personal harm that might follow a straight- 
forward performance of his duty. His arrest for com- 



165 



plicity in a murder was borne by the same tranquil 
bravery — a supreme reliance upon a clue process of 
law. He did not want the officer to apolopjize to him 
for doing his duty. He had imprisoned Judge Terry 
and his wife Sarah Althea for contempt of court. * * * 
The threats by Judge Terry did not even frigliten him 
to carry weapons of self-defense. This illustration of 
upholding the majesty of the law is witliout precedent, 
and is worth more to the cause of justice than the en- 
tire United States army could be if called out to sup- 
press a riotous band of law-breakers. Justice Field 
did what any justice should do under the circumstances, 
but how many judges would have displayed a like 
courage had they been in his place ? 

The New York World, in its issue of Monday even- 



A NEW LEAF TUKNED. 

AVhen Judge Field, knowing that his life was threat- 
ened, went back unarmed into the State of California 
and about his business there, he gave wholesome re- 
buke to the cowardice that prompts men to carry a 
pistol — a cowardice that has been too long popular on 
the coast. He did a priceless service to the cause of 
progress in his State, and added grace to his ermine 
when he disdained to take arms in answer to the 
threats of assassins. 

Tiie men who have conspired to take Judge Field's 
life ought to need only one warning that a new day has 
dawned in California, and to tind that warning in the 
doom of the bully Terry. The law will protect the 
ermine of its judges. 

The New York World oi August 18th treats of the 
arrest of Justice Field as an outrage, and speaks of it 
as follows : 



166 



THE AEREST OF FIELD AN OUTRAGE AND A# 
ABSURDITY. 

The California magistrate who issued a warrant for 
Justice Field's arrest is obviously a donkey of the most 
precious quality. The Justice had been brutally as- 
sailed by a notorious ruffian who had publicly declared 
his intention to kill his enemy. Before Justice Field 
could even rise from his chair a neat-handed deputy 
United States marshal shot the ruffian. Justice Field 
had no more to do with the shooting than any other 
bystander, and even if there had been doubt on that 
point it was certain that a justice of the United States 
Supreme Court was not going to run away beyond the 
jurisdiction. His arrest was, therefore, as absurd as it 
was outrageous. It was asked for by the demented 
widow of the dead desperado simply as a means of 
subjecting the Justice to an indignity, and no magistrate 
possessed of even a protoplasmic possibility of com- 
mon sense and character would have lent himself in 
that way to such a service. 

The Kansas City Times, in its issue at this period, 
uses the following language : 

NO ONE WILL CENSURE. 

Oratihidefor Judge Field's Escape the Chief Sentiment. 



Deputy Marshal Neagle acted with terrible prompti- 
tude in protecting the venerable member of the Supreme 
Court with whose safety he was specially charged, but 
few will be inclined to censure him. He had to deal 
with a man of fierce temper, whose readiness to use 
firearms was part of the best known history of Cali- 
fornia. 



167 



It is a subject for general cono;ratulation that Justice 
Field escaped the violence of his assailant. The Amer- 
ican nation would be shocked to learn that a jud<j;e of 
its highest tribunal could not travel without danger of 
assault from those whom he had been compelled to of- 
fend by administering the laws. Justice Field has the 
respect due his office and that deeper and more signifi- 
cant reverence produced by his character and abilities. 
Since most of the present generation were old enough 
to observe public affairs he has been a jurist of national 
reputation and a sitting member of the Supreme Court. 
In that capacity he has earned the gratitude of his 
countrymen by bold and unanswerable defense of sound 
constitutional interpretation on more than one occa- 
sion. In all the sad affair the most prominent feeling 
will be that of gratitude at his escape. 

The Army and Navy Journal, in its issue of August 
24, 1889, had the following article under the head of — 

MARSHAL NEAGLE'S CRIME. 

The public mind appears to be somewhat unsettled 
upon the question of the right of Neagle to kill Terry 
while assaulting Judge Field. His justification is as 
clear as is the benefit of his act to a long-suffering com- 
munity. Judge Field was assaulted unexpectedly from 
behind, while seated at a dining-table, by a notorious 
assassin and rufiian, who had sworn to kill him, and 
who, according to the testimony of at least one witness, 
was armed with a long knife, had sent his wife for a 
pistol, and was intending to use it as soon as obtained. 
* * * 

The rule is that the danger which justifies homicide 
in self-defense must be actual and urgent. And was it 
not so in this case ? No one who reflects upon the 
features of the case — an old man without means of de- 



fense, fastened in a sitting posture by the table at wLicb 
he sat and the chair he occupied, already smitten with 
one severe blow and about to receive another more 
severe from a notorious .ruffian who had publicly 
avowed his intention to slay him — no one surely can 
deny that the peril threatening Judge Field was both 
actual and urgent in the very highest degree. 

" A man may repel force by force in the defense of 
his person, habitation, or property, against one or many 
who manifestly intend and endeavor by violence or 
surprise to commit a known felony on either." " In 
such a case he is not obliged to retreat, but may pur- 
sue his adversary till he find himself out of danger ; 
and if in a conflict between them he happens to kill, 
such killing is justilial»le. The right of self-defense in 
case of this kind is founded on the law of nature, and 
is not, nor can be, superseded by any law of society. 
Where a known felony is attempted upon the person, 
be it to rob or murder, the party assaulted may repel 
force by force ; and even his servant attendant on him, 
or any person present, may interpose for preventing 
mischief, and, if death ensue, the party interposing 
will be justified." (Wharton Amer. Crim. Law, Vol. 2, 
Sec. 1019.) 

This is the law, as recognized at the present day and 
established by centuries of precedent, and it completely 
exonerates Neagle — of course Judge Field needs no 
exoueration^from any, the least, criminality in what 
he did. He is acquitted of wrong-doing, not only in his 
character of attendant servant, but in that of bystander 
simply. He was as much bound to kill Terry under the 
circumstances as every bystander in the room was bound 
to kill him ; and in his capacity of guard, especially 
appointed to defend an invaluable life against a known 
and imminent felony, he was so bound in a much 
greater degree. 

" A sincere and apparently well-grounded belief that 



169 



a felony is about to be perpetrated will extenuate a 
homicide committed in prevention of it, though the 
defendant be but a private citizen " (25 Ala., 15.) 
See Wharton, above quoted, who embodies the doctrine 
in his text (Vol. 2, Sec. 1039). 

* •» vr * * * * * * 

Let us be grateful from our hearts that the old 
Mosaic law, " Whoso sheddeth man's blood by man shall 
his blood be slied," is shown by this memorable event 
to have not yet fallen altogether into innocuous desue- 
tude ; and let us give thanks to God that he has seen 
tit on this occasion to preserve from death at the hands 
of an intolerable ruffian the life of that high-minded, 
pure-handed, and excellent jurist and magistrate, 
Stephen J. Field. 

The Philadelphia Times of August 15th has the fol- 
lowing: 

ONLY ONE OPINION. 



Marshal Neagle Could Not Stand Idly By. 



The killing of Judge Terry of California is a homi- 
cide that will occasion no regret wherever the story of 
his stormy and wicked life is known. At the same 
time, the circumstances that surrounded it will be deeply 
lamented. This violent man, more than once a mur- 
derer, met his death while in the act of assaulting Justice 
Field of the Supreme Court of the United States. 
Haa he not been killed when he was, Judge Field 
would probably have been another of his victims. 
Terry had declared his purpose of killing the Justice, 
and this was their first meeting since his release from 
deserved imprisonment. 

In regard to the act of United States Marshal Neagle, 
there can be only one opinion. He could not stand 



170 



idly by and see a judge of the Suprene Court murdered 
before his eyes. The contumely that Terry sought to 
put upon the Judge was only the insult that was to go 
before premeditated murder. The case has no moral 
except the certainty that a violent life will end in a 
violent death. 

The Philadelphia Inqairer of the same date says as 

follows : 

A PKEMEDITATED INSULT. 

Followed Quickly by a Deserved RetrilmUon. 

Ex-Judge Terry's violent death was a fitting termina- 
tion to a stormy life, and the incidents of his last en- 
counter were characteristic of the man and his methods. 
He was one of the few lingering representatives of the 
old-time population of California. He was prominent 
there when society was organizing itself, and succeeded 
in holding on to life and position Avhen many a better 
man succumbed to the rude justice of the period. 
Most of his early associates died with their boots on, a 
generation ago. Terry lived, assailed on all sides, de- 
spised by the better element and opposed by the law, 
in trouble often, but never punished as he deserved. 
His last act was to offer a gross, premeditated insult to 
the venerable Justice Field, and the retribution he had 
long defied followed it quickly. California will have 
little reason to mourn his loss. 

The CleveUmd Leader, in its issue of August 18th, 
speaks of the conduct of Neagle as follows : 

THE KILLING OF TERRY. 

We have already expressed the opinion in these col- 
umns that the killing of David S. Terry by Deputy 



171 



Marshal Neagle at Latlirop, California. Wednesday, 
was entirely justifiable. In that opinion it is a pleasure 
to note that the press of the country concur almost 
unanimously. The judgment of eminent members of 
the legal profession, as published in our telegraph 
columns and elsewhere, support and bear out that view 
of the case. The full account of the trouble makes the 
necessity of some such action on the part of the deputy 
marshal clear. The judgment of the country is that 
Neagle only did his duty in defending the person of 
Justice Field, and in that judgment the California jury 
will doubtless concur when the case is brought before it. 

The Argonaut, a leading paper of San Francisco, 
not a political, but a literary paper, and edited with 
great ability, in its issue of August 26, 1889, used the 
following language : 

The course of Judge Field throughout this trou- 
blesome business has been in the highest degree 
creditable to him. He has acted with dignity and 
courage, and his conduct has been characterized by 
most excellent taste. His answer, when requested to 
go armed against the assault of Terry, is worthy of 
preservation. And now that his assailant has been 
arrested in his career by death, all honest men who 
respect the law will breathe more freely. Judge Terry 
had gained a most questionable reputation, not for 
courage in the right direction ; not for generosity 
which overlooked or forgave, or forgot offenses against 
himself or his interests. He never conceded the right 
to any man to hold an opinion in opposition to his 
prejudices, or cross the path of his passion with 
impunity. He could with vulgar whisper insult the 
judge who rendered an opinion adverse to his client, 
and with profane language insult the attorney who 



172 



had the misfortune to be retained by a man whose 
cause he did not champion. He had become a terror 
to society and a walking menace to the social circle 
in which he revolved. His death Avas a necessity, 
and, except here and there a friend of blunted 
moral instincts, there will be found but few to mourn 
his death or criticise the manner of his taking off. To 
say that Marshal Neagle should have acted in any other 
manner than he did means that he was to have left 
Justice Field in the claws of a tiger, and at the mercy 
of an infuriated, angry monster, who had never shown 
mercy or generosity to an enemy in his power. - * * 
Judge Field has survived the unhai)py conflict 
which carried Judge Terry to his grave. He is more 
highly honored now than when this quarrel was thrust 
upon him ; he has lost no friends ; he has made thou- 
sands of new ones who honor him for protecting with 
his life the honor of the American bench, the dignity 
of the American law, and the credit of the American 
name. In the home where Judge Terry lived he went 
to the grave almost unattended by the friends of his 
social surroundings, no clergyman consenting to read 
the service at his burial. The Supreme Court over 
which he had presided as chief justice refused to ad- 
journ in honor of his death, the press and public opin- 
ion, for a wonder, in accord over the manner of his 
taking off". 

Indeed, the public opinion of the country, as shown 
by the press and declarations of prominent individuals, 
was substantially one in its approval of the action of 
the Government, the conduct of Neagle, and the bear- 
ing of Justice Field.* 

♦Note. — Whilst there was a general concurrence of opinion as to 
the threats of Terry and of the fate he met at the hands of Neagle 



173 



The Daily Report, a paper of influence in San 
Francisco at the time, published the foUowing article 
on " The Lesson of the Hour," from the pen of an 
eminent lawyer of California, who was in no way con- 
nected with the controversy which resulted in Judge 
Terry's death : 

The universal acquiescence of public opinion in 
the justifiable character of the act which terminated 
the life of the late David S. Terry is to be accounted 
for by the peculiar nature of the offense which he had 
committed. It was not for a mere assault, though per- 

and of the bearing of Justice Field through all the proceedings, there 
were exceptions to this judgment. There were persons who sympa- 
thized with Terry and his associates and grieved at his fate, although 
he had openly avowed his intention not merely to insult judicial ofl&- 
cers for their judicial conduct, but to kill them in case they resented 
the insult offered. He married Sarah Althea Hill after the United 
States Circuit Court had delivered its opinion, in open court, announc- 
ing its decision that she had committed forgery, perjury, and subor- 
nation of perjury, and was a woman of abandoned character. And 
yet a writer in the Overland Monthly in October, 1889, attributes his 
assault upon the marshal — striking him violently in the face for the 
execution of the order of the court to remove her from the court- 
room because of her gross imputation upon the judges — chiefly to his 
chivalric spirit to protect his wife, and declares that "the universal 
verdict" upon him "will be that he was possessed of sterling integ- 
rity of purpose, and stood out from the rest of his race as a strongly 
individualized character, which has been well called an anachronism 
in our civilization." And Governor Peunoyer, of Oregon, in his mes- 
sage to the legislature of that State, pronounced tiie officer appointed 
by the marshal under the direction of the Attorney-General to pro- 
tect Justices Field and Sawyer from threatened violence and murder 
as a ^^ secret armed assassin,^' who accompanied a Federal judge in 
California, and who shot down in cold blood an unarmed citizen of 
that State. 



174 



petrated under circumstances which rendered it pecu- 
liarly reprehensible, that he met his death without 
eliciting from the community one word of condemna- 
tion for the slayer or of sympathy with the slain. 

Mr. Justice Field is an officer of high rank in the 
most important department of the Government of the 
United States, namely, that which is charged with the 
administration of legal justice. When David S. Terry 
publicly and ostentatiously slapped the face of this 
high official — this representative of public justice — 
the blow being in all probability the intended prelude 
to a still more atrocious oftense, he committed a gross 
violation of the peace and dignity of the United States. 
The echo of the blow made the blood tingle in the 
veins of every true American, and from every quarter, 
far and near, thick and fast, came denunciations of the 
outrage. That any man under a government created 
" by the people, for the people " shall assume to be a 
law unto himself, the sole despot in a community based 
on the idea of the equality of all before the law, and 
the willing submission and obedience of all to estab- 
lished rule, is simply intolerable. 

In his audacious assault on " the powers that be " 
Terry took his life in his hand, and no lover of peace 
and good order can regret that, of the two lives in peril, 
his was extinguished. He threw down the gage of 
battle to the whole community, and it is well that he 
was vanquished in the strife. 

In the early part of the war of the rebellion Gen- 
eral Dix, of New York, was placed in charge of one of 
the disafiected districts. We had then hardly begun to 
see that war was a very stern condition of things, and 
that it actually involved the necessity of killing. Those 
familiar with the incidents of that time will remember 
how the General's celebrated order, " If any one at- 
tempts to haul down the American flag, shoot him on 
the spot," thrilled the slow pulses of the Northern heart 



175 



like the blast of a bugle. Yet some adverse obstruc- 
tionist might object that the punisliment pronounced 
far exceeded the offense, which was merely the effort to 
detach from its position a piece of colored bunting. 
But it is the anivms that characterizes the act. An in- 
sult offered to a mere symbol of authority becomes, 
under critical circumstances, an unpardonable crime. 
If the symbol, instead of being an inanimate object, 
be a human being — a high officer of the Government — 
does not such an outrage as that committed by Terry 
exceed in enormity the offense denounced by General 
Dix? And if so, why should the punishment be less? 
In every civilized community, society, acting with 
a keen instinct of self-preservation, has always pun- 
ished with just severity those capital offenders against 
peace and good order who strike at the very founda- 
tion on which all government must rest. 



CHAPTER XX. 

THE APPEAL TO THE SUPREME COURT OF THE UNITED 
STATES, AND THE SECOND TRIAL OF SARAH ALTHEA's 
DIVORCE CASE. 

With the discharge from arrest of the brave deputy 
marshal, Neagle, who had stood between Justice Field 
and the would-be assassin's assault, and the vindication 
by the Circuit Court of the right of the general govern- 
ment to protect its officers from personal violence, for 
the discharge of their duties, at the hands of disap- 
pointed litigants, the pubHc mind, which had been 
greatly excited by the proceedings narrated, became 
quieted. No apprehension was felt that there would be 
any reversal of the decision of the Circuit Court on the 
appeal which was taken to the Supreme Court. Gen- 
eral and absolute confidence was expressed in the de- 
termination of the highest tribunal of the nation. The 
appeal was argued on the part of Neagle by the At- 
torney-General of the United States and Joseph H. 
Choate, Esq., of the New York bar ; and the briefs of 
counsel in the Circuit Court were also filed. The at- 
torney-general of California and Mr. Zachariah Mont- 
gomery appeared upon behalf of the State, and briefs 
of Messrs. Shellabarger and Wilson were also filed in 
its behalf. 



177 



The argument of tlie Attorney- General of the United 
States was exceedingly able. He had Avatched all the 
proceedings of the case from the outset. He had di- 
rected that protection should be extended by the 
marshal to Justice Field and Judge Sawyer against any 
threatened violence, and he believed strongly in the 
doctrine that the officers of the general government 
were entitled to receive everywhere throughout the 
country full protection against all violence whilst in the 
discharge of their duties. He believed that such pro- 
tection was necessary to the efficiency and permanency 
of the government ; and its necessity in both respects 
was never more abl}' presented. 

The argument of Mr. Choate covered all the ques- 
tions of law and fact in the case and w^as marked by 
that great ability and invincible logic and by that clear- 
ness and precision of statement which have rendered 
him one of the ablest of advocates and jurists in the 
country, one who all acknowledge has few peers and 
no superiors at the bar of the nation.* 



*NoTE. — Mr. Choate took great .interest in the question involved — 
the right of the Government of the United States to protect its offi- 
cers from violence whilst engaged in the discharge of their duties, — 
deeming its maintenance essential to the efficiency of the Government 
itself ; and he declined to make any charge or take any fee for his 
professional services in the case. The privilege of supporting this 
great principle before the highest tribunal of the country, where his 
powers would be most effectively engaged in securing its recognition, 
was considered by him as sufficient reward. Certainly he has that 
reward in the full establishment of that principle — for which, also, 



178 



The argument of the attorney-general of the State 
consisted chiefly of a repetition of the doctrine that, for 
offenses committed within its limits, the State alone 
has jurisdiction to try the offenders — a position which 
within its proper limits, and when not carried to tlie 
protection of resistance to the authority of the United 
States, has never been questioned. 

The most striking feature of the argument on behalf 
of the State was presented by Zachariah Montgomery. 
It may interest the reader to observe the true Terry 
flavor introduced into his argument, and the manifest 
perversion of the facts into which it led him. He 
deeply sympathized with Terry in the grief and morti- 
fication which he suffered in being charged with hav- 
ing assaulted the marshal with a deadly weapon in the 
presence of the Circuit Court in September, 1888. He 
attempted to convince the Supreme Court that one of 
its members had deliberately made a misrecital, in the 
order committing Terry for contempt, and treated this 
as a mitigation of that individual's subsequent attack 
on Justice Field. He did not, however, attempt to 

both he and Attorney-General Miller will receive the thanks of all 
who love and revere our national government and trust that its exist- 
ence may be perpetuated. 

Mr. James C. Carter, the distinguished advocate of New York, also 
took a deep interest in the questions involved, and had several con- 
sultations with Mr. Choate upon them ; and his professional services 
were given with the same generous and noble spirit that characterized 
the course of Mr. Choate. 



179 



gainsay the testimon}- of the numerous witnesses who 
swore that Terry did try to draw his knife while yet in 
the court-room on that occasion, and that, being tempo- 
rarily prevented from doing so by force, he completed 
the act as soon as this force was withdrawn, and pur- 
sued the marshal with knife in hand, loudly declaring 
in the hearing of the court, in language too coarse and 
vulgar to be repeated, that he would do sundry terrible 
things to those who should obstruct him on his way to 
his wife. As she was then in the custody of the mar- 
shal and in his office, under an order of the court ; and 
as Terry had resisted her arrest and removal from the 
court-room until overpowered by several strong men, 
and as he had instantly on being released rushed 
madly from the court-room, drawing and brandishing 
his knife as he went, the conclusion is irresistible that 
he was determined upon her rescue from the marshal, 
if, with the aid of his knife, he could accomplish it. 
That Mr. Montgomery allowed these facts, which con- 
stitute the oflense of an assault with a deadly weapon, 
to go unchallenged, compels us to the charitable pre- 
sumption that he did not know the law. 

A reading of the decisions on this subject would 
have taught him that in order to constitute that oifense 
it is not necessary that the assailant should actually 
stab with his knife or shoot with his pistol. The as- 
sault by Terry was commenced in the court-room, 



180 



under the ejes of the judges, and was a continuing 
act, ending only with the wrenching of the knife from 
his hands. It was all committed " in the presence of the 
court," foi- the Supreme Court has decided in the Savin 
case that " the jury-room aud hallway were parts of the 
place in which the court was required by law to hold 
its sessions, and that the court, at least when in ses- 
sion, is present in every part of the place set apart for 
its own use and for the use of its officers, jurors, and 
witnesses, aud that misbehavior in such a place is 
misbehavior in the presence of the court. (See vol. 
131, U. S. Eeports, page 277, where the case is reported.) 

Mr. Montgomery was reckless enough to contradict 
the record when he stated that Justice Field in his 
opinion in the revivor case " took occasion to discuss 
at considerable length the question of the genuineness 
of the aforesaid marriage document, maintaining very 
strenuously that it was a forgery, and that this it was 
that so aroused the indignation of Mrs. Terry that she 
sprang to her feet and charged Justice Field with 
having been bought." 

There is not a word of truth in this statement. 
Justice Field, in overruling the demurrer, never dis- 
cussed at all the genuineness of the marriage agree- 
ment. How, then, could it be true that words, nowhere 
to be found in Judge Field's opinion, " so aroused the 
indignation of Mrs. Terry that she sprang to her feet 



181 



and charged Justice Field with having been bought"? 
Justice Field discussed only the legal effect of the 
decree already rendered by the United States Circuit 
Court. He said nothing to excite the woman's ire, 
except to state the necessary steps to be taken to en- 
force the decree. He had not participated in the trial 
of the original case, and had never been called upon 
to express any opinion concerning the agreement. Mr. 
Montgomery said in his brief that the opinion read by 
Justice Field, " while overruling a demurrer, assails 
this contract, in effect pronouncing it a forgery." This 
statement is totally unfounded. From it the casual 
reader would suppose that the demurrer was to the 
complaint in the original case, and that the court was 
forestalling evidence, whereas it was a demurrer in a 
proceeding to revive the suit, which had abated by the 
death of the party, and to give effect to the decree 
already rendered therein, after a full hearing of the 
testimony. 

Mr. Montgomery said : 

" The opinion also charges Mrs. Terry with perjury, 
after she has sworn that it was genuine." 

The judgment of a court may be referred to by one 
of its judges, even though the rendering of the judg- 
ment convicted a party or a witness, of perjury, with- 
out furnisliing the perjurer with a justification for 



182 

denouncing the judge. Mr. Montgomery furthermore 
said that the " opinion charged her not onl}' with 
forgery and perjury, but with unchastity as well ; for if 
she had not been Sharon's wife, she had unqviestiou- 
ably been his kept mistress." He says : 

"At the announcement of this decision from the bench 
in the presence of a crowded court-room ; a decision 
Avhich she well knew, before the going down of another 
sun, would be telegraphed to the remotest corners of 
the civilized world, to be printed and reprinted with 
sensational head-lines in every newspaper, and talked 
over by every scandal-monger on the face of the earth ; 
was it any wonder — not that it was right^ — but was it 
any wonder that this high-spirited, educated woman, 
sprung from as respectable a family as any in the great 
State of Missouri, proud of her ancestry, and prizing 
her good name above everything on this earth, when 
she heard herself thus adjudged in one breath to be 
guilty of forgery, perjury, and unchastity, and thus de- 
graded from the exalted position of wife — to which the 
Supreme Court of her State had said she was entitled — 
down to that of a paid harlot; was it any wonder, I 
say, that like an enraged tigress she sprang to her feet, 
and in words of indignation sought to defend her 
wounded honor ? " 

Mr. Montgomery did not speak truly when he said 
that on this occasion such a decision was announced 
from the bench. The decision was announced on the 
24th of December, 1885, nearly three years before. 
The only decision announced on this occasion was that 
the case did not die with the plaintiff therein — William 



183 



Sliaron — but that the executor of his estate had the 
right to act — had a right to be substituted for the de- 
ceased, and to have the decree executed just as it would 
have been if Mr. Sharon had lived. It was amazing 
effrontery and disregard of the truth on the part of 
Mr. Montgomery to make such a statement as he did 
to the Supreme Court, when the record, lying open 
before them, virtually contradicted what he was say- 
ing. 

Towards the close of the decision Justice Field did 
make reference to Mrs. Terry's testimony in the Su- 
perior Court. He said that in the argument some 
stress had been laid upon the fact t\}t\t in a State 
court, where the judge had decided in Mrs. Terry's 
favor, the witnesses had been examined in open court, 
where their bearing could be observed by the judge ; 
while in the federal court the testimony had been taken 
before an examiner, and the court had not the advan- 
tage of hearing and seeing the witnesses. In reply to 
this Justice Field called attention to the fact that Judge 
Sullivan, while rendering his decision in favor of Mrs. 
Terry, had accused her of having wdlfully perjured 
herself in several instances while testifying in her own 
case, and of having suborned perjury, and of having 
knowingly offered in evidence a forged document. But 
this reference to Judge Sullivan's accusations against 
Mrs. Terry was not reached in the reading of Justice 



184 



Field's opinion until nearly an hour after Mrs. Terry 
had been forcibly removed from the court-room for 
contempt, and therefore she did not hear it. This fact 
appears on record in the contempt proceedings. 

But the most extraordinary feature of Mr. Mont- 
gomery's brief is yet to be noticed. He says that " If 
the assault so made by Judge Terry was not for the 
purpose of then and there killing or seriously injuring 
the party assaulted, but for the purpose of provoking 
him into a duel, then the killing of the assailant for 
such an assault was a crime." 

And again he says : 

" I have said that if the purpose of Judge Terry's 
assault upon Field was foi the purpose of killing him 
then and there, Neagle, and not Neagle only, but any- 
body else, would have been justifiable in killing Terry 
to save the life of Field ; but that if Terry's object in 
assaulting Field was not then and there to kill or other- 
wise greatly injure him, but to draw him into a duel, 
then such an assault was not suflicient to justify the 
killing." 

He then proceeds to speak of Judge Terry's duel 
with Senator Broderick, in which the latter was killed. 
He refers to many eminent citizens who have fought 
duels, although he admits that dueling is a sin. He 
then explains that " as a rule the duelist who considers 
himself wronged by another, having the position and 
standing of a gentleman, tenders him an insult, either 



185 



by a slap in the face or otherwise, in order to attract a 
challenge. Such undoubtedly was Terry's purpose in 
this case. All of Terry's threats point precisely to 
that." 

Here Mr. Montgomery seems to be in accord with 
Sarah Altliea Terry, who, as we have seen, stated that 
" Judge Terry intended to take out his satisfaction in 
slaps." In the same direction is the declaration of 
Porter Ashe, when he said : 

" Instant death is a severe punishment for slapping 
a man on the face. I have no suspicion that Terry 
meant to kill Field or to do him further harm than to 
humiliate him." 

And also that of Mr. Baggett, one of Terry's coun- 
sel, who said : 

" I have had frequent conversations with Terry 
about Field, and he has often told me that Field has 
used his court and his power as a judge to humiliate 
him, and that he intended to humiliate him in return 
to the extent of his power. ' I will slap his face,' said 
Terry to me, 'if I run across him, but I shall not put 
myself out of the way to meet him. I do not intend to 
kill him, but I will insult him by slapping his face, 
knowing that he will not resent it.' " 

What knightly courage was here. If ever a new edi- 
tion of the dueling code is printed, it should have for 
a frontispiece a cut representing the stalwart Terry 
dealing stealthy blows from behind upon a justice of 



186 



the United States Supreme Court, 72 years of age, 
after having previously informed a trusted friend that 
he believed himself safe from an}' resistance by the 
object of his attack. It may be here also said that 
Justice Field, as was well known to every one, had for 
many years suffered from great lameness in conse- 
quence of an injury received by him in early life, and 
with difficulty could walk without assistance. 

Mr. Montgomery, with freezing candor, informs the 
Supreme Court that, in strict accordance with the chiv- 
alrous code of honor, Judge Terry administered blows 
upon a member of that court, to force him into a duel, 
because of a judicial act with which he was displeased. 

He says : 

" The most conclusive proof that Terry had no in- 
tention, for tlie time being, of seriously hurting Field, 
but that his sole purpose was to tender him an insult, 
is (omul in the fact that he only used his open hand, 
and that, too, in a mild manner." 

We often hear of the " mild-mannered men " who 
" scuttle ships " and " cut throats," but this is the very 
first one whose " very mild manner " of beating a jus- 
tice of the Supreme Court of the United States with his 
hand was ever certified to by an attorney and counsel- 
lor of that court in the argument of a case before it. 

It would be difficult to conceive of anything more 
puerile or absurd than this pretense that Terry had the 



187 



slightest expectation of provoking a man of Justice 
Field's age, official position, and physical condition, to 
light a duel with him in vindication of the right of the 
court over which he presided to imprison a man for 
contempt for beating the marshal in the face with his 
fist, and afterwards pursuing him witli a knife, in the 
presence of the court, for obeying an order of the 
court. 

Mr. Montgomery appears to have been imported into 
the case mainly for the purpose of reviewing the facts 
and giving them the Terry stamp. His ambition seems 
to have been to insult Justice Field and his associates 
in the Circuit Court by charging them with misrepre- 
senting the facts of the occurrence, thus repeating 
Terry's reckless accusations to that effect. For Terry 
he had only words of eulogy and admiration, and said 
he was " straightforward, candid, and incapable of con- 
cealment or treachery himself, and therefore never 
suspected treachery, even in an enemy." 

These noble qualities Terry had illustrated by 
assaulting Justice Field from behind while the latter 
was in a position which placed him entirely at the 
mercy of his assailant. 

Montgomery thought that not only Neagle, but the 
President, Attorney-General, district attorney, and 
Marshal Franks should be arraigned for Terry's 
murder. 



188 



Although Justice Field had expressly advised the mar- 
shal that it was unnecessary for anybody to accompany 
him to Los Angeles, and although Neagle went contrary 
to his wish, and only because the marshal considered 
himself instructed by the Attorney-General to send 
him, yet Mr. Montgomery especially demanded that he 
(Justice Field) should be tried for Terry's homicide. 
This, too, in the face of the fact that under instructions 
from the attorney-general of the State of California, 
aroused to his duty by the Governor, the false, 
malicious, and infamous charge made against Justice 
Field by Sarah Althea Terry was dismissed by the 
magistrate who had entertained it, on the ground that 
it was manifestly destitute of the shadow of a founda- 
tion, and that any further proceedings against him 
would be " a burning disgrace to the State." 

The decision of the Circuit Court discharging Neagle 
from the custody of the sheriff of San Joaquin county 
was affirmed by the Supreme court of the United 
States on the 14th of April, 1890. Justice Field did 
not sit at the hearing of the case, and took no part in 
its decision, nor did he remain in the conference room 
with his associate justices at any time while it was 
being considered or on the bench when it was delivered. 
The opinion of the Court was delivered by Justice 
Miller. Dissenting opinions were filed by Chief Justice 
Fuller and Justice Lamar. Justice Miller's opinion 
concludes as follows : 



189 



" We have thus given, in this case, a most attentive 
consideration to all the questions of law and fact which 
we have tliought to be properly involved in it. We 
have felt it to be our duty to examine into the facts 
with a completeness justified by the importance of the 
case, as well as from the duty imposed u])on us by the 
statute, which we think requires of us to place our- 
selves, as far as possible, in the place of the Circuit 
Court and to examine the testimony and the arguments 
in it, and to dispose of the party as law and justice 
require. 

" The result at which we have arrived upon this 
examination is, that in the protection of the person 
and the life of Mr. Justice Field, while in the discharge 
of his official duties, Neagle was authorized to resist 
the attack of Terry upon him ; that Neagle was correct 
in the belief that without prompt action on his part the 
assault of Terry upon the Judge would have ended in 
the death of tlie latter ; that such being his well- 
founded belief, he was justified in taking the life of 
Terry, as the only means of preventing the death of 
the man who was intended to be his victim ; that in 
taking the life of Terry, under the circumstances, he 
was acting under the authority of the law of the 
United States, and was justified in doing so ; and that 
he is not liable to answer in the courts of California 
on account of his part in that transaction. 

" We therefore affirm the judgment of the Circuit 
Court authorizing his discharge from the custody of 
the sheriff of San Joaquin county." 



CHAPTER XXI. 

CONCLUDING OBSERVATIONS. 

Thus ends the history of a struggle between brutal 
violence and the judicial authority of the United States. 
Commencing in a. mercenary raid vipon a rich man's 
estate, ^relying wholly for success on forgery, perjury, 
and the personal fear of judges, and progressing 
through more than six years of litigation in both the 
Federal and the State courts, it eventuated in a vindi- 
cation by the Supreme Court of the United States of 
the constitutional power of the Federal Government, 
through its Executive Department, to protect the 
judges of the United States courts from the revengeful 
and murderous assaults of defeated litigants, without 
subjecting its appointed agents to malicious prosecu- 
tions for their fidelity to duty, by petty State officials, 
in league with the assailants. 

The dignity and the courage of Justice Field, who 
made the stand against brute force, and who, refusing 
either to avoid a great personal danger or to carry a 
weapon for his defense, trusted his life to that great 
power which the Constitution has placed behind the 
judicial department for its support, was above all 
praise. 



91 



The admirable conduct of the faithful deputy mar- 
shal, Neagle, in whose small frame the power of a na- 
tion dwelt at the moment wlien, like a modern David, 
he slew a new Goliath, illustrated what one frail mortal 
can do, who scoi-ns danger when it crosses the path of 
duty. 

The prompt action of the Executive Department, 
through its Attorney-General, in directing the marshal 
to ali'ord all necessary protection against threatened 
danger, undoubtedly saved a justice of the Supreme 
Court from assassination, and the Government from 
the disgrace of having pusillanimousl}' looked on while 
the deed was done. 

The skill and learning of tlie lawyers who presented 
the case of Neagle in the lower and in the appellate 
courts reflected honor on the legal profession. 

The exhaustive and convincing opinion of Circuit 
Judge Sawyer, when ordering the release of Neagle, 
seemed to have made further argument unnecessary. 

The grand opinion of Justice Miller, in announcing 
the decision of the Supreme Court affirming the order 
of the Circuit Court, was the fitting climax of all. Its 
statement of the facts is the most graphic and vivid of 
the many that have been written. Its vindication of 
the constitutional right of the Federal Government to 
exist, and to preserve itself alive in all its powers, and 
on every foot of its territory, without leave of, or hin- 



192 



drauce by, any other authority, makes it one of the most 
important of all the utterances of that great tribunal. 

Its power is made the more apparent by the dissent, 
which rests rather upon the assertion that Congress 
had not legislated in exact terms for the case under 
consideration, than upon any denial of the power of 
the Federal Government to protect its courts from 
violence. The plausibility of this ground is dissipated 
by the citations in the majority opinion of the Cali- 
fornia statute concerning sheriffs, and of the federal 
statute concerning marshals, by which the latter are in- 
vested with all the powers of the sheriffs in the States 
wherein they reside, thus showing clearly that marshals 
possess the authority to protect officers of the United 
States which sheriffs possess to protect officers of the 
State against criminal assaults of every kind and de- 
gree. 

During the argument in the Neagle case, as well as 
in the public discussions of the subject, much stress 
was laid by the friends of Terry upon the power and 
duty of the State to afford full protection to all persons 
within its borders, including the judges of the courts 
of the United States. They could not see why it was 
necessary for the Attorney-General of the United 
States to extend the arm of the Federal Government. 
They held that the police powers of the State were 
sufficient for all purposes, and that they were the sole 



193 



lawful refuge for all whose lives were in danger. But 
tliey did not explain why it was that the State never 
did afford protection to Jndges Field and Sawyer, 
threatened as they notoriously were by two desperate 
persons. 

The laws of the State made it the duty of every 
sheriff to preserve the peace of the State, but the 
Terrys were permitted, undisturbed and unchecked, 
to proclaim their intention to break the peace. If 
they had announced their intention, for nearly a 
year, to assassinate the judges of the Supreme Court 
of the State, would the}' have been permitted to take 
their lives, before being made to feel the power of the 
State ? Would an organized banditti be permitted to 
unseat State judges by violence, and only feel the 
strong halter of the law after they had accomplished 
their purpose ? Can no preventive measures be taken 
under the police powers of the State, when ruffians give 
notice that the}' are about to obstruct the administra- 
tion of justice by the murder of high judicial officers ? 
It was not so much to insure the punishment of Terry 
and his wife if they should murder Justice Field, as to 
prevent the murder, that the executive branch of the 
United States Government surrounded him with the 
necessary safeguards. How can justice be administered 
under the federal statutes if the federal judges must 
fight their way, while going from district to district, to 



194 



overcome armed and vindictive litigants who differ 
with them concerning the judgments tliey have 
rendered ? 

But it w^as said Jiidge Terry could have been held 
to bail to keep the peace. The highest bail that can 
be required in such cases under the law of the State is 
five thousand dollars. 

What restraint would that have been upon Terry, 
who was so filled with malice and so reckless of con- 
sequences that he finally braved the gallows b}' at- 
tempting the murder of the object of his hate ? But 
even this weak protection never was afforded. Shall 
it be said that Justice Field ought to have gone to the 
nearest justice of the peace and obsequiously begged 
to have Terry placed under bonds ? But this he could 
not have done until lie reached the State, and he Avas 
in peril from the moment that he reached the State 
line. The dust had not been brushed from his clothing 
before some of the papers which announced his arrival 
eagerly inquired what Terry would do and when he 
would do it. Some of them seemed most anxious for 
the sensation that a murder would produce. 

The State was active enough when Terry had been 
prevented from doing liis bloody work upon Justice 
Field. The constable who had been telegraphed for 
before the train reached Lathrop on the fatal day, but 
w^ho could not be found, and was not at the station to 



;iicl iu preserving- the peace, was quick euougli to dvresL 
Neagle loithout a tiKirrant^ for an act not coininitted in 
Ms presence^ and therefore known only to him by hear- 
say. Against the remonstrances of a supreme justice 
of the ITnited States, who had also been chief justice 
of California, and who might have been supposed to 
know the laws as well at least as a constable, the pro- 
tection placed over him by the Executive branch of 
the Federal Government was unlawfully taken from 
him and the protector incarcerated in jail. The; con- 
stable doubtless did only what he was told and what he 
believed to be his duty. Neagle declined to make any 
issue with him of a technical character and went with 
him uncomplainingly. If Neagle's pistol had missed 
fire, or his aim had been false, he might have been ar- 
rested on the spot for his attempt to protect Justice 
Field, while Terry would have been left free at the 
same time to finish his murderous work then, or to 
have pursued Justice Field into the car and, free from 
all interference by Neagle, have despatched him there. 
The State officials Avere all activity to protect the 
would-be murderer, but seemed never to have been 
ruffled in the least degree over the probable assassina- 
tion of a justice of the Supreme Court of the United 
States. The Terrys were never thought to be in any 
danger. The general belief was that Judges Field and 
Sawyer were iu great danger from them. 



196 

The death of Terry displeased three classes : first, 
all who were willing to see Justice Field murdered ; 
second, all who naturally sympathize with the tiger in 
his hunt for prey, and who thought it a pity that so 
good a fighter as Terry should lose his life in seeking 
that of another ; and, third, all who preferred to see 
Sarah Althea enjoy the property of the Sharon estate 
in place of its lawful heirs. 

It is plain from the foregoing review that the State 
authorities of California presented no obstruction to 
Terry and his wife as they moved towards the accom- 
plishment of their deadly purpose against Justice 
Field. It was the Executive arm of the nation oper- 
ating through the deputy United States marshal, under 
orders from the Department of Justice, that prevented 
the assassination of Justice Field by David S. Terry. 



It only remains to state the result of the second trial 
of the case between Sarah Althea Hill, now Mrs. Terrj, 
and the executor of William Sharon before the Supe- 
rior Court of the city of San Francisco. It will be re- 
membered that on the first trial in that court, presided 
over by Judge Sullivan, a judgment was entered de- 
claring that Miss Hill and William Sharon had inter- 
married on the 25th of August, 1880, and had at the 
time executed a written contract of marriage under the 



197 



laws of California, aud bad assumed marital relations 
and subsequently lived to^etber as busband and wife. 
From tbe judgment rendered an appeal was taken to 
tbe Supreme Court of tbe State. A motion was also 
made for a new trial in tbat case, and from tb(> (nder 
denying tbe new trial an appeal was also taken to tbe 
Supreme Court. Tbe decision on tbe appeal from tbe 
judgment resulted in its affirmance. Tbe result of tbe 
appeal from tbe order denying a new trial was its re- 
versal, witb a direction for a new trial. Tbe effect of tbat 
reversal was to open tbe wliole case. In tbe meantime 
William Sbaron bad died and Miss Hill bad married 
David S. Terry. Tbe executor of William Sbaron, 
Frederick W. Sbaron, appeared as bis representative 
in tbe suit, and filed a supplemental answer. Tbe case 
was tried in tbe Superior Court, before Judge Sbafter, 
in July, 1890, and on the 4tb of August following the 
'Judge filed bis findings and conclusions of law, which 
were, briefly, as follows : 

That the plaintiff and William Sharon, deceased, did 
not, on the 25th of August, 1880, or at any other time, 
consent to intermarry or become, by mutual agreement 
or otherwise, husband and wife ; nor did they, there- 
after, or at any time, live or cohabit together as bus- 
band and wife, or mutuall}- or otherwise assume marital 
duties, rights, or obligations ; that they did not, on that 
day or at anj^ other time, in the city aud county of Sau 



I UN 

|-'r;iucist'<), or elsewhere, joiiitlv or otherwise, make or 
sij^ii a (lechiratioii of marriage in writing or otherwise : 
unti that theiK-chiraition i>f marriage mentioned in the 
complaint was faJHe, e»>unterfeit«'t|, faitrieated. forgeil, 
and frail liileiit. and, tht-refore. null an<l void. 'Phi' 
conclusion of the c«Mirt was that the plaintitV antl Wil- 
liam Sjjanui were not. on August '25. IHSO, and never 
had Ixeii hushan<l and wife, and that th*- phiintitV had 
no right or claim, h«gal or e(|uital>le. tojinv propi'rtv or 
share in any pniperty, real or personal, i»f whi«h Wil- 
liam Sharon was the owner or in possessiuu, or which 
was then or might therej»fter In* hehl hy the executor 
of his last will and testjtment tin- defendant, Frederick 
W.Sharon. Aciordingly, judgnnnt was entered for tin* 
defendant. An appeal was taken from that judgment 
to tin- Supreme Court of California, and on the 5th of 
August, IHU'i, Sarah Althea Terry linving heoome in- 
sane pending tin* appeal, and I*. 1*. .Vshe, Es(|., having 
heen appointed and (pniliticd as the general guardian 
of her person and estati', it was (irdereil that he be Hub- 
stitutt'd in the oa.se. and that she subsequently appeji^- 
l»N him as her guanlian. In October following, the 
appeal was dismissed. 

Thus ended the legal controversy initiated by this 
adventur«'ss to obtain a part of the estaite of the de- 
ceased millionaire. 



I'> 



CON'CLrSIOX, 



As seen bv rem.-irks ou \y.v^i- *J.")(; above, the opinions 
f Mr, Justice Field, from which quotations are given, 

■ r to wliich reft-n'iK-*' is inach-, constitute a small part 

■ f his labors on tiu' bench. His judicial career covers 
manv vt-ars of service, in which he has l)eeu called upon 
to express his views on an infinite variety of subjects. 
Ho was a member of the Su]»r«'nie Court of the State 
"f Cidifornia for tive years and seven months, a part 

• f which time he was its ('hi*>f Justice, and he has been 
II the bench of the Supremi' Court of the United States 
ince May 2i), \SiVA, now (October 20, 1805) thirty-two 
years and tiv«' months, making in all a judicial service, in- 
( biding both courts, of thirty-ei;.,dit years. If he remains 
II the supreme bench of the United States two years 
Hid one month ioniser, he will have reached a period of 
.•rvi<-e of tliirty-four y«ars and six months on that bench, 
■i.-at.-r than that of any judj^e of that court during the 
p.riod of its existence. Marshall had a service there of 
thirty four years ami five months ; Justice Story, a service 
of thirty-threo yeurs ami tive months, and Justice Mc- 
Lean, a service of thirty-two years and twenty-nine 
days. Considering his excellent health and habits, it is 
not unreasonable to believe that Justice Field will equal 
if not exceed the longest in service. 



His opinions relate to subjects of great interest to the 
Government and its administration ; to its commerce, 
products, and welfare generally. Many of them have 
been published, and are bound in six octavo volumes. 
The opinions which are not thus bound can only be found 
in the reports of the Supreme Court of California and of 
the Supreme Court of the United States. Of those ren- 
dered during and after October term 1887, reference is 
made to the following as the most interesting and instruc- 
tive, viz : 

Powell V. Pennsylvania, rendered April 9, 1888, and 
reported in 127 U. S. 678, where it is decided that the 
State cannot lawfully prohibit the manufacture and sale 
of an article of food, in itself healthy and nutritious ; and 
that the right to take all measures for the support of life, 
which are innocent in themselves and do not impair the 
equal rights of others, is an element of that freedom 
which every American citizen claims as his birthright ; 
Mahon v. Justice, rendered May 14, 1888, and reported 
in 127 U. S. 700, where it is decided that there is no 
comity between the States by which a person held upon 
an indictment for a criminal offence in one State can be 
turned over for trial to the authorities of another State ; 
Indiana v. Kentucky, rendered May 19, 1890, and re- 
ported in 136 U. S. 479, where it is decided that the do- 
minion and jurisdiction of a State bounded by a river 
continue as they existed at the time when it was admitted 
into the Union, unaffected by the action of the forces of 
nature upon the course of the river ; In re Ross, rendered 
May 25, 1891, and reported in 140 U. S. 453, where it is 
decided that American Consular Courts have the power 
to try and sentence American citizens charged with mur- 
der committed on board of an American ship in a foreign 
port where such consular tribunal is held ; Boyd v. Ne- 



braska, rendered Febrnarv 1, 180'J, and icpoited in 14;} 
U. S. 135, where it is held by Justice Field, iu a dissent- 
ing opinion, that the courts of the United States have no 
jurisdiction to determine a disputed ([ucstion as to tli(3 
governorship of a State ; O'Neil v. Vermont, rendered April 
4, 1892, and reported in 144 U. S. 3'23, where it is held 
by Mr. Justice Field, in a dissenting opinion, that the 
tribunal of one State has no jurisdiction to punish as an 
offence the removal of an article of lawful merchandise to 
within its borders from another State ; Barden v. North- 
ern Pacific E.R. Co., rendered May 26, 1894, and reported 
in 154 U. S. 288, where the reservation to the United 
States of the precious metals in grants of public land 
made by the United States to railroad companies for the 
construction of their roads is established ; The Lake Front 
Case of Chicago, rendered December 5, 1892, and re- 
ported in 146 U. S. 387, where it is decided that the doc- 
trine as to the dominion and sovereignty over and owner- 
ship of lands under the navigable waters of the Great 
Lakes applies, which obtains at the common law as to the 
dominion and sovereignty over and ownership of lands 
under tide waters on the borders of the sea, and the lands 
are held by the same right in the one case as in the other, 
and subject to the same trusts and limitations ; Iowa v. 
Illinois, rendered January 3, 1893, and reported in 147 
U. S. 1, where it is held that the true boundary line of 
navigable waters separating two States is the middle of 
the main channel of the dividing stream ; Virginia r. Ten- 
nessee, rendered April 3, 1893, and reported in 148 U. S. 
503, where the boundary between those States, as estab- 
lished by compact between them made in 1803, is re- 
affirmed ; The Chinese Deportation Cases, rendered May 
15, 1893, and reported in 149 U. S. 698, in which it is 
held by Justice Field, in a dissenting opinion, that bru- 



tality, iiiluimanity, and cruelty cannot be made an ele- 
ment in any procedure for the enforcement of the laws of 
the United States, and that a Chinese subject, lawfully 
settled in this country, cannot be forcibly deported from 
it except upon a conviction of a public offence providing 
for such deportation ; United States v. Eodgers, rendered 
November 20, 1893, and reported in 150 U. S. 219, where 
the term " high seas " is held to be applicable to the open 
and unenclosed waters of the Great Lakes ; Wharton v. 
Wise, rendered April 23, 1894, and reported in 153 U. S. 
155, Avhere the right to control the taking and removal of 
oysters from the beds of certain dividing streams between 
Maryland and Virginia is considered, and the right of 
Virginia sustained > and The Income Tax Cases, rendered 
April 8, 1895, and reported in 157 U. S. 129, and on re- 
hearing in 158 U. S. 601, where the tax laid by the act 
of Congress of August, 1894, is held to be unconstitu- 
tional. 

OCTOBEE 20, 1895. 



5f?^S\^^^ 



